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THE 



COMMON LAW PROCEDURE ACT, 

1854. 



LONDON : PBINTCD BY W. CLOWES AND SONS, STAMTOBD STRl^ET. 



THE 



Common iialti Ptocetiure ^ct* 

1854, 

(17 & 18 VICT., Cap. 125,) 

WITH PRA.CTICAL NOTES : 



AX 



INTEODUCTION, 

EXPLAINING THE NATDUE AND EXTENT OF THE EQUITABLE 

JURISDICnON CONFERRED ON THE SUPERIOR COURTS OF 

COMMON LAW; THE CHANGES EFFECTED IN THE LAW 

OF EVIDENCE; AND THE ALTERATIONS 

IN PRACTICE INTRODUCED 

BY THE STATUTE: 



ASD 



% (C^ojtiiitia Sflltei. 



BT 




EOBEET MALCOLM KEEE, 



BABBraiES-AT-LAW. 



LONDON: 

BUTTEEWOETHS, 7 PLEET STEEET, 

HODGES & SMITH, GRAFTON STREET. DUBLIN. 

1854. 



PREFACE. 



In the preparation of this volume I have followed, 
as closely as the nature of the work permitted, the 
general plan of my edition of "The Common Law 
Procedure Act, 1862/' 

In the Introduction, I have endeavoured to give an 
outline of the many important changes introduced by 
the statute. 

In pointing out, in the first four chapters, the 
nature of that extension of jurisdiction, which is the 
most prominent feature of the Act, my object has 
been to explain, as well the reasons which led 
to, as the extent of, the powers now conferred on the 
Superior Courts of Common Law. For while the 
performance of contracts and duties, which these 



l-** PREFACE. 

Courts may now compel, is not so extensive as the 
specific performance which may be decreed by a Court 
of Equity, the discovery they may obtain for a 
suitor seems to be practically as unlimited. The re- 
petition of wrongful acts, arising out of a breach 
of contract, may be restrained; but an injunction 
cannot yet be obtained in Courts of Law, in the 
many cases of threatened injury and doubtful legal 
right, in which the Court of Chancery at once 
interferes; and the Legislature, while it enables a 
defendant to plead an equitable defence, has thrown 
a doubt on the propriety of its own act, by a presup- 
position, that some at least of such defences cannot be 
dealt with by the Courts, it has authorized to receive 
and give effect to them. 

The fifth chapter relates chiefly to the Law of 
Arbitration, which has been ip some respects altered 
and improved. In this chapter, I have taken the 
opportunity of mentioning the change, which has been 
made in the rule of practice, as to the addresses of 
counsel to the jury. It is difiSoult to find the reason 
for confining this alteration in practice to the pro- 
ceedings before a jury. If the system in operation 



PREFACE. Vlt 

was objectionable (and the Commissioners state their 
opinion very strongly that it was so), the change ought 
to have been extended, like the alterations in the 
Law of Evidence, " to every Court of Civil Judicature 
in England and Ireland/' This has not been done, 
nor has the change of system been extended to the 
proceedings on a trial by a judge without a jury ; so 
that unless the judges interfere to make the practice 
uniform, two rules of practice will be in force in 
Westminster HalL 

In the sixth and seventh chapters I have attempted 
an analysis, of the proceedings on appeals on 
motions for a new trial, or to enter a verdict or 
nonsuit; — of the new process of execution by the 
attachment of debts ; — and of the procedure for the 
examination of unwilling witnesses. 

The ninth chapter is devoted to a ^statement of the 
important alterations which have been made in the 
Law of Evidence ; and in the last chapter I have 
called attention to the amendments in existing pro- 
cedure effected by the statute. 

A list of ten chapters may excite, not unna- 
turally, an expectation that the various matters of 



mil PREFACE. 



which they form the subject have been treated 
fully and in detail. Any such expectation must 
be disappointed, for this sub-division has been 
adopted solely with a view to precision and brevity. 
If " a great book is a great evil/' the evil is most felt 
in the case of a law-book, which I think cannot be 
too concise consistently with accuracy. 

It is principally to those sections of the statute 
which alter, modify, or amend the proceedings in 
personal actions, that I have appended any Notes. 
The effect of an alteration in the law, as in anything 
else, may be. best learned by considering what the 
rule was before the change was introduced. With 
this view I have stated more fully than in other in- 
stances, but I trust usefully, the reasons which have 
led to the several amendments in the Law of Evidence 
effected by the statute. 

I need scarcely remind the reader that an edition 
of so important a measure as " The Common Law 
Procedure Act, 1854," can make no pretensions to be 
either a treatise on jurisdiction, or a handbook of 
practice. Not only is the extent of. the jurisdiction, 
which has been conferred on the Courts of Common 



PREFACE. ix 

Law, for book-writing purposes altogether undefined ; 
but much of the procedure, ** for the ejBfectual execu- 
tion " of the Act, and of " the intention and object *' 
thereof, has yet to be framed. An outline of the 
changes effected by the statute, seems as much as can, 
in the circumstances, be reasonably expected from an 
editor. 

I have endeavoured to make the Index as complete 
as possible. 

In the Preface I may be permitted a word or two 
of criticism, merely to call attention to the fact, that 
the " amendment" section and the " interpretation 
clause," in this statute, differ from the analogous 
provisions of " The Common Law Procedure Act, 
1852." The differences may be unimportant in them- 
selves, but in principle they are indefensible, and may 
in practice give rise to many di£Bculties. These 
defects might have been passed over, were it not that 
one other section of the statute' betrays an amount of 
carelessness, which is not very creditable to the 
framers of the measure. I allude to the 88th section, 
which professes to vest in the Superior Courts of Law or 
any judge thereof, the same jurisdiction ^^ as may be 

a 3 



X PBEFACB^ 

exercised " by the Courts of Equity, under the stat. 
53 Geo. IIL, c. 169. 

* Now the Courts of Equity have not, and had not at 
the time this Act was passed, any jurisdiction whatever 
under the statute 59 Ceo. III. a 159, for that statute 
was repealed in toto by " The Merchant Shipping Act, 
1854," passed before " The Common Law Procedure 
Act, 1854." If a strict and literal construction be 
given, the 88th section is a mere nullity ; and, on 
the other hand, I may add that the intention even, 
professed by the legislature in the 88th section, to give 
the Courts of Law, in certain maritime cases, the same 
jurisdiction as the Courts of Equity, was not carried 
into effect by " The Merchant Shipping Act, 1854," 
which vests afresh, in the Court of Chancery, the 
jurisdiction it previously had under the 53 Geo. IIL, 
c. 159. 

There are apparent difficulties and anachronisms 
with regard to some of the sections, to which I have 
called attention in the Notes. These result probably 
from the differentaspect under which statutable provi- 
sions are viewed by the framersand the Commentator. 
The former, having settled principles and ideas in 



PREFACE. XI 



their minds, are unavoidably impressed with the 
belief that they have carried their object into efifect, 
while the language they employ is imperfect, when 
it comes to be considered apart ftom all extraneous 
and previous conceptions. 

I have given, in an Appendix, the important Sta- 
tute of last Session, enabling the parties to actions 
in the Superior Courts of G)mmon Law at West- 
minster, to compel, if necessary, the attendance of 
witnesses residing in Scotland and Ireland. 

With these observations, I leave the following 
pages in the hands of the reader, who will extend 
his indulgence, I trust, to the many shortcomings 
which he will not fail to discover in the Treatise. 



RM. K. 



Temple, October, 1B54. 



CONTENTS. 



USTTEODUCTION. 



CHAPTER !• 

SPECIFIC PERFORMANCE yi 

prerogative writ of mandamus yiii 

action to obtain a mandamus . . . • . ix 



CHAPTER n. 

INJUNCTION xin 

proceedings in the action 



CHAPTER m. 

DISCOVERY : 

discovery of documents xvii 

interrogatories xx 

oral examination of parties • . • . . xxi 

inspection of premises and chattels .... xxii 

CHAPTER IV. 
EQUITABLE DEFENCES xxiv 



XW COIITKNT8. 

CHAPTER V. 

PROCEEDINGS ON THE TRIAL : 
trial by the ooart or a judge 
oompulsoiy reference to arbitration . 
amendments in the law of arbitration 
trial by jary . • . • • 
adjoommentof the trial . 



PAQX 



• 



ZXXll 

zxxiy 



xli 



CHAPTER VI. 

PROCEEDINGS AFTER THE TRIAL : 

special case xliii 

motions for a new trial, &c zliv 

proceedings on appeals againstmotions for a new trial, Ssc, zlvii 

CHAPTER VII. 

EXECUTION BY THE ATTACHMENT OF DEBTS : 

order of attachment li 

proceedings against the garnishee • . . . lii 

CHAPTER Vm. 

SUMMARY PROCEEDINGS IN COURT : 

affidavits Iv 

examination of unwilling witnesses . • • • Ivi 

CHAPTER IX. 

ALTERATIONS IN THE LAW OF EVIDENCE . IviU 

affirmations instead of oaths • . . . . Ixi 

discrediting witnesses Ixii 

proof of contradictory statements .... Ixv 

cross-examination as to previous statements . • Ixvii 

proof of previous conviction of a witness . . . Ixviii 

attesting witnesses ....... Ixx 

comparison of disputed handwriting . • Ixxii 

stamp duties Ixzvi 



CX>NTENTS. OOV 

CHAPTER X. 

PAGE 

AMENDMENTS IN THE PROCEDURE OF THE 
SUPERIOR COURTS : 

new trial IxxU 

revivor Ixxxii 

abatemenjt Ixxxiii 

ejectment ........ Ixxxv 

execution Ixxxyi 



CONTEKTS. 



JPVtt 



THE STATUTE. 



TRIAL BY THE COURT OR A JUDGE 



PAQS 
1 



COMPULSORY REFERENCE TO ARBITRATION : 

before the trial 3 

at the trial 5 

proceedings in the reference 6 

setting aside and enforcing award 7 



AMENDMENTS IN THE LAW OF ARBITRATION: 
staying proceedings after agreement to refer • 
appointment of arbitrator or umpire . • 
time for making the award • . • . 
role to deliver possession of land . • • 
agreements to refer may be made rules of coart 



8 
10 
11 
12 
13 



PROCEEDINGS AT THE TRIAL : 

speeches to the jury • 13 

adjomnment 14 



ALTERATIONS IN THE LAW OF EVIDENCE: 
affirmation instead of oath . . • 
discrediting witnesses .... 
proof of contradictory statements . 
cross-examination as to previous statements 
proof of previous conviction of a witness 
attesting witness need not be called • 
comparison of disputed handwriting • 
stamping documents at the trial • 



15 
16 
18 
19 
20 
22 
23 
23 



• •• 



XVm CONTENTS. 

PAOX 

ERROR ON A SPECIAL CASE 26 

NEW TRIAL: 

rale nisi 28 

not to be granted in certain cases 26 

costs in certain cases to abide event . • . .33 
error on award of trial de novo 32 

APPEAL ON MOTIONS, to enter a Verdict or Nonsuit, or 
for a New Trial : 
appeal when role granted or refused . • . .28 

courts of appeal 30 

notice of appeal — bail — form of appeal • . .31 
judgment and costs 31 

SUMMARY PROCEEDINGS IN COURT: 

affidavits 33 

oral examination of witnesses . • . • -34 
examination of unwilling witnesses . • . .36 

DISCOVERY : 

of documents 37 

inspection of documents ..•••• 39 

interrogatories of parties 41 

oral examination of parties 42 

INSPECTION OF PREMISES AND CHATTELS . . 44 

EXECUTION BY THE ATTACHMENT OF DEBTS: 

examination of judgment debtor 45 

order of attachment 46 

proceedings to levy, from the garnishee • • . .46 
garnishee discharged 47 

SPECIFIC PERFORMANCE : 

action for a mandamus. ...... 47 

proceedings in the action ...... 48 

peremptory writ of mandamus 48 

act may be done at expense of defendant. . . .49 

MANDAMUS (Prerogative Writ of) . . . . . 49 



CONTENTS. XtX 

PAOS 

SPECIFIC DELIVERY OF CHATTELS .... 50 

INJUNCTION : 

claim of ugnnction ..•...• 51 

proceedings in the action 52 

EQUITABLE DEFENCES 53 

replication 57 

actions on lost instruments 58 

scire: facias on judgment of assets ut/utvro . . • 60 

PROCEEDINGS to compel continuance or abandonment of 

an action in case of deatii • • 61 

CLAIMANT in second action of ejectment to give security for 

costs 64 

WRITS OF EXECUTION, issued before a4th Oct. 1852 . 65 

SITTINGS OF THE COURTS 66 

AMENDMENT 67 

INTERPRETATION 70 



APPENDIX (Witnesses Act) 77 



INDEX 81 



TABLE OF CASES. 



FAOB 

Amies y. Kelsey 45 

Aldridge v. Great Western Railway Company . • • 5 

Attorney Grenend ▼. Corporation of London • . . . 4o 

Bacon v. Bacon 54 

Bailie y. de Bemdes 65 

Bally. Storie 54 

Batey. Kensey 28 

Bawtree y. Watson ' . • • 55 

Beale y. Bird 38 

Blair y. Jones 7 

Bloggy.Kent a^ 

Black y. Gompertz 38 

Bolton y. Corporation of Liyerpool 40 

Bongleox y. Swayne 31 

Bradley y. Eyre 61 

y. Ricardo 17 

Brandford y. Freeman . . . . . .14 

Braswell y. Jeco ■. • . 61 

Bridger y. Gay 69 

Brown y. Brown 50 

y. Granyille 26 

Buckland y. Johnson 69 

Camden y. Edie * ... 26 

Chamley y. Grundy 58, 68 

Chetwynd y. Mamell 39 

Clinton y. Hooper 57 



TABLE OF CASES. XOn 

FAOE 

Cocks Y. Nasb 38 

Cole T. Beardy 66 

Cooke y. Lamotte 56 

Coster V. Baring • 40 

Craythome ▼. Si^inbume . r ^ • • . . 57 
Croft y. Liodsey €.•••.. .54 

Crowe y. Claye •<•..... 58 

Curwyn y. Milner 56 

Dayis y. Cooper 55 

Deyonage y. Boayerie 38 

Dicus y. Jay • • . « 9 

Dodgson y. Scott .... . . . . 61 

Doe d. y. Slight ........ 38 

Ayery y. Langford • . . . • . ' . 40 

— — Banks y. Holmes 7 

Brayne y. Bather .►.,... 65 

Child y. Roe . . 39 

Hamilton y. Hamilton . . .- . . .65 

Fish y. Maodonnell 28 

Heighley y. Harland 65 

Langdon y. Langdon 64 

Mayoy. Carmel 7, 12 

Morris y. Roe 38 

Nichol y.Boyer 14 

Selby y. Alston . . ... . . .65 

Williams y. Winch 66 

. y. Lord 28 

Dnncombe y. Mayer 50 

Edwards y. Brown 32, 55 

y. Dayies 7, 12 

Espe y. Lake .56 

Eyans y. Delagal 38 

Farr y. Denn 62 

Fells y. Read 50, 51 

Fisher y. Ronalds 21 

Fox y. Wright 56 



XXU TABLE OF CASES. 

PAGB 

Francis v. Doe 32 

Fuller Y. Fenwick 8 

Galsirorihy y. Norman 40 

Garrard v. Tuck 26 

Gibson y. Hunter 2 

Goodliffe y. Fuller 38 

Growland y. de Faria , • 55 

Great Western Railway Company y. Cripps • • . .54 

Hare y. Fleay 8 

Harris y. Reynolds 9 

Heron y. Heron . • • • 55 

Higgins y. Nichols •••••••. 28 

Hildyard y. Smith 39 

Hill y. Philp 41 

Holland y. Fox • ... 52 

y. Phillips 61 

Holt y. Holt 54 

Huguenin y. Basley 56 

Hunning y. Ferrers 55 

Hunt y. Hewit 39, 41 

Hontley y. Bnlmer 65 

Jackson y. Butler 50 

James y. Cochrane • • 30 

Johnson y. Wilson 12 

Jones y. Lewis 54 

y. Paln\er 38 

Keene d. Angel y. Angel * • 64 

King y. Hamlet 55 

Langford y. Gascoigne 54 

Larchin y. Buckle 62 

Lawrence y. Hooker 38 

Leyy y. Hamer . . . •■ 60 

Lewis y. Trussler 15 

Linigen y. Simpson 50 



TABLE or CASES. OTOnit 

PAOS 

Louis ▼. Eennode 9 

Lowe ▼. Joliffe . 18 

Macdonnell y. Evans 20 

Macrae y. Maclean 7 

Mara y. Qnin 61 

Marshall y. Collett •••..•.. 54 

Meeos y. Thellusson 68 

Mentzer y. Bolton 68 

Morgan y. Pike 69 

Neale y. Swind 38 

Nickalls y. Warren 6 

Noble y. Chapman 68 

Oliyerson y. Latonr 61 

Oxford's (Earl of ) Case ....... 55 

Panton y. Hale 61 

Peacock y. Eyans 56 

Perkins y. Petit 61 

Pickering y. Noyes 39 

Pinkns y. Starch 62 

Place y. Potts 68 

Price y. Quarrel 5 

Posey y. Pusey 50 

Ratcliffe y. Bleasby 38 

Rayner y. Collinson 40 

Reg. y. Aokroyd 21 

■ y. Crofts •••..•••• 21 

y. Sadlers' Company 50 

Rex. y. Cohen 62 

Ritchie y. Van Gelder 68 

Roberts y. Holmes • • 15 

Robson y. Doyle .69 

Koger y. Turner •••..••• 41 

S^ayiUe y. Tancred 50 



xxw 



TABLE or CASES. 



Scott V. ATcry . ' 
— V. Walker . • 
Shaw y. Bank of England 

V. Beck . • 

Shelley y. Nash . 
Smith y. Clark . 

V. Duke of Beaufort 

y. Tateham 

y. Winter. . 

Sneider y. Mangino • 

Steadman y. Arden 

Stiles y. Gowper. 

Street y. Brown . 

Somerset (Duke of) v. Ckiokson 



Taylor y. Shaw • 
Thomas y. Williams . 
Thomson y. Lewis 
Threlfall y. Webster . 
Townsend y. Barker • 
Trayis y. Collins 
Trickett y. Jarman 
Tweddell y. Tweddell. 

Wain y. Bailey . 
Wallace y. Wallace . 
Wardle y. Carter 
Webb y. Harrell 
Whyman y. Grarth • 
Wilkin y. Reed . 
Williams y. Dayis 
Witham y. Lewis 
Wolner y. Deyereux . 
Wood y. Abny . . 

r-v. Morewood • 

V. l^wcliffe 

Woodcock y. Worthington 



FAOB 

. 10 

. 40 

44, 45 

. 14 

. 55 

. 28 

. 40 

. 60 

. 38 

. 39 

. 38 

. 55 

,. 38 

• 50 

. 68 

. 61 

. 15 

. 39 

. 64 

. 38 

. 68 

. 55 

. 58 

. 55 

. 55 

. 47 

22, 23 

. 69 

. 14 

. 32 

. 39 

. 55 

. 39 

. 50 

. 38 



THE 

COMMON LAW PROCEDURE ACT, 

1854. 



3ntrotrattton. 



99 



The "Common Law Procediufe Act, 1854, 
which may be thus cited in any instrument, 
document, or proceeding (s. 106),* is entitled 
"An Act for the further Amendment of the 
"Process, Practice, and Mode of Pleading in 
" and enlarging the Jurisdiction of the Superior 
" Courts of Common Law at Westminster, and 
" of the Superior Courts of Common Law of the 
^' Counties Palatine of Lancaster and Durham :^ 

r 

and its Provisions come into operation on the 
Twenty-fourth Day of October One thousand 
eight hundred and fifty-four (s. 104). 

The statute, however, not only enlarges the 
jurisdiction of the Superior Courts of Common 
Law, but introduces several most important 
changes in the law of evidence; and enables 
judgment creditors to issue a new species of 

* The references within parentheses are to the sections 
of the statute. 

B 



ii INTBODUCTION. 

execution, similar to the proceeding known in 
Ix)ndon and Bristol as the process of foreign 
attachment. Several alterations in the practice 
of the courts, supplementary to those introduced 
by "The Common Law Procedure Act, 1852," 
are also effected by this Act,* which is founded 
in a great measure on the reconunendations con- 
tained in the Second Report of the recently- 
appointed Common Law Commissioners. To 
that Eeport I shall accordingly have frequent 
occasion to refer. 

The most important provisions in the statute 
are those which extend the jurisdiction of the 
Superior Courts of Common Law. I shall 
endeavour, consequently, to explain, in the first 
place, the nature and extent of the powers thus 
conferred on these courts, which may now exercise 
what have hitherto been the peculiar functions of 
the Courts of Equity, and compel the specific 
PERFORMANCE of contracts and duties — ^restrain 
by WRIT OF INJUNCTION the committal of a breach 
of contract or other injury of a like kind, and 
obtain for the suitor a discovery of documents 
and facts, in the knowledge only of his adversary. 

The equitable jurisdiction, which has thus been 
conferred on the Common Law Courts, would 
nevertheless have done little for litigants, had 
not the statute further enabled the defendant to 
plead an equitable defence, and the plaintiff 
in his replication to avoid a plea upon equitable 
grounds. If the provisions of the Act to this effect 
are carried out to their full and legitimate extent^ 
they will go far to effect in a sa^ and efficient 
manner what has been termed of late years the 
fusion of law and equity. At all events the 
Superior Courts of Law have now the power, in 
many cases, to do complete justice between the 

• 8S. 91, 92, 93. 



• • • 



INTBODUCTION. lU 

parties, without forcing on either the necessity of a 
resort to the Court of Chancery. 

Having explained the nature of the extended 
jurisdiction of the Superior Courts, I shall describe 
the several alterations introduced by the statute, 
with reference to the trial of issues of fact. The 
parties to an action may now in certain cases have 
the cause tried by a judge sitting alone without a 
jury ; and a reference to arbitration may be made 
at any time before the trial, by order of the court 
or a judge, on the application of either of the 
parties to the action. The other changes are 
chiefly in the practice of the courts, and their 
object and effect is to give an appeal against the 
decision of the courts, on motions for a new trial, 
or for leave to enter a verdict or nonsuit, and on 
special cases. It will be recollected, that in order 
to be able to resort to a Court of Error, it has 
hitherto been necessary to tender a bill of excep- 
tions, or to obtain from the jury a special verdict. 

Some changes have been effected in the practice 
relating to the numerous incidental applications 
which may be made in the course of a suit, and 
which must be founded on affidavits. I shall 
shortly refer to these, and to the new process of 
execution which I have already mentioned. I 
shall then point out the alterations introduced 
in the rules relating to the examination of wit- 
nesses; and conclude by briefly calling attention 
to several sections in the Act, which cannot be 
left unnoticed, as they afiect the most recent 
amendments in the procedure of the Superior 
Courts of Common Law. 



B S 



IV INTBODUCTION. 



Chafteb I. — Specific Perfobmance. 

The jurisdiction of the Court of Chancery extends 
over many matters entirely beyond the cognizance 
of the Common Law. It represents the Crown as 
parens patricBy in the guardianship of infants and 
lunatics, and in the superintendence of charities, 
lu other cases it exercises a jurisdiction conferred 
by statute, as in the control of money deposited 
on the formation of public companies; and in 
proceedings under Fart IX. of '^ The Merchant 
Shipping Act, 1854," for the protection of 
shipowners agaiubt liability beyond the value of 
the ship and freight.* In the majority of instances, 
the equitable jurisdiction of the Court of Chancery 
is exercised oyer matters with which the Common 
Law Courts do not interfere ; but in some cases 
Courts of Equity either furnish a more complete 
remedy in respect of common law rights, or 
actually restrain the exercise of such rights on 
equitable grounds. 

Where the Courts of Common Law and Equity 
operate upon the same subject-matter in different 
ways, by applying different forms of remedy, or, 
to speak more properly, different portions of a 
complete remedy for the same injury, a con- 
solidation of all the elements of that complete 
remedy in the same court is obviously essential, 

* ** The Merchant Shipping Act, 1854," re-enacts, in 
part, the " Act to limit the Responsibility of Shipowners 
in certain Cases^" 53 Geo. III., c. 159. 



INTKODUCTION, V 

in order to constitute a consistent and indeed a specific Per- 
rational system of procedure. In those cases, Z'^ ""*'*^- 
therefore, in which Courts of Common Law have 
hitherto afforded insufficient protection against, 
or awarded only an inadequate remedy for, the in- 
fraction of legal rights, the supplemental powers 
exercised by Courts of Equity have been added 
to the principal jurisdiction of the Superior Courts 
of Common Law. This has been effected by an 
extension of the remedy hitherto obtained in 
special cases by the writ of mandamus, in the 
manner I am about to explain. 

Practically all personal actions have but one 
aim, compensation in damages for the wrong com- 
plained of. In quare impedit and dower as In 
efecttnenty the judgment is that the plaintiff recover 
the land claimed. In replevin, if the plaintiff 
obtains a verdict, he retains in his possession the 
chattels restored to him, when he gave security 
for their return. In the action of detinue, again, 
the plaintiff in form recovers the specific chattels 
sued for or their value; but as the defendant 
might hitherto have paid the value of them, 
this action was not strictly a means of recovering 
specific chattels.* In all other actions, the sole 
effect of the verdict and judgment has hitherto 
been to procure a stipulated debt or a sum in 
name of damages. 

" It is, however, beyond all question that, in 
very many cases, money compensation, after a 
loss or wrong has been sustained, is a very 
inadequate remedy, and one which falls very 
" fiur short of what complete justice requires. It 
'^ is obvious that where obligations are imposed 



* The court may now order that execution shall issue 
for the return of the chattel detained, without giving the 
defendant the option of retaining such chattel upon 
paying the value assessed (s. 78). 






VI INTRODUCTION. 

spedpi Pet: ^^ by the law, or undertaken by the act of parties, 
for mmee. u ^jjg party on whose behalf they are created has 
^' a right to insist on the specific performance of 
<< the acts which have been undertaken for his 
^' benefit, where such acts are capable of being 
^^ performed, and where money would not be a 
'^ perfect compensation for their nonperformance ; 
^^ and, in like manner, that where an injury is 
'' about to be committed for which a mere money 
" payment would not be a full and perfect re- 
^^ dress, a power should exist of anticipating and 
" prohibiting the wrongful act." — (Second Be- 
port, p. 39.^ 

These defects of the common law being left 
unredressed, the Court of Chancery stepped in to 
supply the remedy ; and for a long period it has in 
many cases of common law obligations and rights, 
enforced a specific performance, and in many other 
cases of legal wrongs commenced or threatened, 
prohibited the commission of wrongful acts. 

Where a public inconvenience or a private 
wrong is occasioned by the omission of a public 
duty, and no sufficient remedy is afforded by an 
action for damages, a writ of mandamus may be 
obtained to compel the performance of the par- 
ticular duty. This mode of proceeding, which is 
peculiar to the Court of Queen's Bench, was 
originally confined in its operation to a limited 
class of cases affecting the administration of 
public affairs ; such as the election of corporate 
ofificers, or compelling inferior courts to proceed 
in matters within their jurisdiction, or public 
ofificers to perform duties imposed upon them, as 
to make a rate and the like. 

In more recent tinges, the remedy has been 
extended to cases in which the rights of private 
individuals only are concerned. In every session 
of Parliament a number of Acts are passed for 
making railways, docks, bridges, improving towns. 



INTEODUCTIOW. Vll 

&c., &c., and, in almost all of such Acis, there are specific Per. 
provisions directing the company obtaining the-^°^ "^""' 
Act to do certain works for the benefit of indivi- 
duals; such as substituting new buildings for 
others necessarily removed, making new commu- 
nications in lieu of old ones, and other works of a 
similar nature. In the event of noncompliance 
with these enactments, the remedy is by 
mandamus. But this mode of proceeding has 
been found to be ^' uncertain, tedious, and expen- 
sive," and it was essential to any extension of the 
use of this action, that the procedure therein 
should be very materially altered and amended. 

The person seeking relief has hitherto heer\ Mandamus. 
obliged to apply for a rule to show cause why a 
writ should not issue. This was done upon 
affidavit, in which was ordinarily set out the 
whole case of the prosecutor, generally at great 
expense. This rule was only obtainable in term 
time, and could only be made absolute during term. 
If opposed, cause must have been shown aJso on 
affidavits. It generally happened that, after 
considerable delay and expense, both sides ad- 
mitted, or the court intimated, that 'the case 
involved questions of fact, which the courts 
invariably refuse to dispose of on affidavit, or 
questions of law which ought to be put on record ; 
and a mandamus consequently issued that such 
questions might be determined on the return. 
The writ thus issued was tested, and was return- 
able only in term. When issued, it sets out the 
facts which constitute the obligation, and com- 
mands the party to whom it is addressed to do 
the act commanded, or to show cause why he does 
not. The return must show either that the writ 
has been complied with, or the grounds on which 
the defendant justifies his resistance. This return 
might have been a traverse of some fkct alleged as 
ground for the writ, or an allegation of fresh 



Vlll INTRODUCTIOW. 

spedjiA TTcr- matter in ajagwer to the prosecutor's ease. If the 
for mMUie, ^^.^ ^^^ y^^ ^p^^ ^^^ ^^^ ^^ .^^ ^ ^^^ Suggest- 
ing, in fact, a case justifying the mandatory part, 
the defendant might, without making any return, 
move to quash the writ for insufficiency, or he 
might reserve and take advantage of his objection 
at a later period of the proceedings. If a return 
were made, the prosecutor might move to quash 
it, or might traverse or plead to it, or demur to it 
as insufficient in law ; or, if his private interest 
was in question, he might bring an action to 
recover damages for the falsehood of the return, 
on the decision of which action in his favour, the 
court awarded a peremptory mandamus. The 
proceedings on a demurrer in mandamus resemble 
those in an ordinary action. If the prosecutor 
obtains a judgment, the court awards a peremp- 
tory mandamus, and in cases of private injury, 
damages and costs. 

It appeared to the Commissioners, and they 
accordingly reported, that the practice in proceed- 
ings by mandamus might be materially improved ; 
and that the operation of the writ might be bene- 
ficially extended, so as to supply one of the defects 
in the jurisdiction of Courts of Common Law 
which has been already pointed out. 

These remodelled proceedings, and the new 
writ of mandamus, I proceed to describe. 



Prerogative Writ of Mandamtis. 

The necessity of a preliminary application to 
the court, for leave to issue a writ of mandamus, 
in the great majority of cases served merely to 
create expense and delay. " If a man may issue 
" a writ to try his right to an estate of indefinite 
" value without the special leave of the court 
** obtained upon voluminous affidavits, why may 



INTBODUCTION. IX 

^' he not issue a writ to try his right to have a spedjus Per- 
*• bridge made upon the same estate, or to havc'^^ ^"^**^' 
^^ compensation assessed for damage done to a 
" small portion of it by severance?" — {Second 
Heportj p. 41.) There seemed to be no reason 
for any such <&stinction ; and, accordingly, upon 
application by motion for any writ of mandamus 
the rule may in all cases be absolute in the first 
instance, if the court shall think fit (s. 76). 

The jurisdiction of the Court of Queen's 
Bench to grant writs of mandamus as hitherto, 
».e. in cases where the public are concerned, re- 
mains intact (s, 75), but the prerogative writ 
of mandamus may now bear teste on the day of 
its issuing, and be made returnable forthwith, 
whether in term or in vacation (s. 76) ; time 
may be allowed to return it, by the court or a 
judge, either with or without terms. 

The Procedure has been also simplified and 
improved. The provisions of ^'The Comm^ 
Law Procedure Act, 1852," and of " The Gom- 
mon Law Procedure Act, 1854," so £ar as they 
are applicable, now apply to the pleadings and 
proceedings upon a prerogative writ of mandamus 
(s. 77). 

Action to obtcm a Mandamus. 

The remedy hitherto aflforded by the pre- 
rogative writ of mandamus, in cases where the 
public were interested, has, as I have stated 
already, been extended to cases in which private 
rights only are concerned. " In any case 
" where a party has such an interest in the 
'^ issuing of a mandamus as to be able to main- 
" tain an action for damages in case of a false re- 
" turn, or, in other words, wherever any person 
" is interested as a private individual in the per-, 

B 3 



X INTBODUCTIOV. 

Specific Per. « formance of any act which may be enforced 
/o nmmct. ,< ^^ mandamus, the latter writ is as much ex 
" debito justitus as the writ by which * * * he may 
'* recover damages for a fidse return." — {Second 
Eeporty p. 41.) To carry out this self-evident 
proposition, the Commissioners accordingly re- 
commended that a plaintiff should be at liberty in 
his declaration to claim the performance of the act 
required to be done by the defendant ; and that, in 
the event of a judgment for the plaintiff, the court 
should have power to enforce that judgment by 
attachment or distringas, and in case of contumacy 
further to adjudge that the act required might be 
done by the plaintiff, or some person appointed 
by the court, at the expense of the defendant. — 
(/Second Report, p. 42.) 

This mode of proceeding seems capable of 
application to every case in which the specific 
performance of a contract or duty may be en- 
forced ; and thus the Superior Courts of Law 
will have power to grant specific performance, 
and to enforce the specific delivery of goods in 
many cases in which that relief has hitherto been 
granted by courts of equity. There are cases in 
which a court of equity decrees a specific per- 
formance, though the legal right be not complete 
at the commencement of the suit. It has not 
been deemed advisable, however, to interfere with 
the jurisdiction of these courts in such cases, but 
only to give to the Superior Courts of Law the 
power of enforcing specific performance in the 
same cases in which compensation in damages can 
now be obtained by an action. This new Action 
of Mandamus to compel specific performance 
Ls not to be confined to the Court of Queen's 
Bench, and the process, pleadings, and proceedings 
in it, are nearly the same as in an ordinary action. 

Claim of The plaintiff in any action (except replevin and 

ejectment) may endorse upon the writ and copy 



INTRODUCTION. XI 

a notice that the plaintiff intends to claim a writ specific Per- 
of mandamus (s. 68) . ffmnance^ 

Having thus indorsed the writ, the plaintiff 
may, in the declaration, claim (either together 
with any demand which may be enforced in the 
action or separately) a writ of mandamus com- 
manding the defendent to fulfil any duty in the 
fulfilment of which the plaintiff is personally 
interested (s. OS) ; and in case of its containing 
such a claim, the declaration must set forth sufili- 
cient grounds for the claim, and show that the 
plaintiff is personally interested therein ; that he 
sustains or may sustain damage by the non- 
performance of the duty, performance of which 
is demanded ; and that performance thereof has 
been demanded by him, and refused or neglected 
by the defendant (s. 69). 

The pleadings and other proceedings, in an 
action in which a writ of mandamus is thus 
claimed, are to be the same in all respects, as 
nearly as may be, and costs are to be recoverable 
by either party, as in an ordinary action for the 
recovery of damages (s. 70). 

Where judgment is given for the plaintiff that 
a mandamus do issue, the court in which such 
judgment is given may, if it shall see fit, besides 
issuing execution in the ordinary way for the 
costs and damages, also issue a peremptory writ 
of mandamus, commanding the defendant forth- 
with to perform the duty to be enforced (s. 71). 

This peremptory writ of mandamus need not ^jS^'*^ 
recite the declaration or other proceedings in Mandamw. 
the action, but will simply command the per- 
formance of the duty, and be in other respects in 
the form of an ordinary writ of execution. It 
will be directed to the party, and may be issued 
in term or vacation, and be made returnable 
forthwith (s. 72). The defendant must then 



XU INTRODUCTION. 

sptcijUiPer' obey the writ ; for no return, except that of com- 
*^'^ *''*^' pliance, will be allowed, although time to return 

the writ may, upon sufficient -grounds, be given 

by the court or a judge (s. 72). 

If the defendant fails either to obey or to re- 
turn the writ, two courses are open to the plain- 
tiff. He may cause the defendant to be attached ; 
for it is expressly provided that the new writ of 
mandamus shall have the same force and effect 
as a peremptory writ of mandamus issued out of 
the Court of Queen's Bench (t. e, a prerogative 
writ of mandamus), and in case of disobedience 
may be enforced by attachment (s. 73). Besides, 
or instead of proceeding against the defendant by 
attachment, the court may, upon application by 
the plaintiff, direct the act required to be per- 
formed by the ^rit to be done by the plaintiff, or 
some other person appointed by the court, at the 
expense of the defendant ; and upon the act 
being done, the amoimt of such expense may be 
ascertained by the court, who may order pay- 
ment of the amount of such expenses and of the 
costs, and enforce payment thereof by execution. 



INTRODUCTION. XIU 



Chapter II. — Injunction. 

Such eing the procedure in actions to compel 
a specific performance of contracts or duties, I 
now come to describe the circumstances and the 
mode, in which the Superior Courts of Common 
Law may prohibit, by injunction, the commission 
of wrongftil acts. 

The subject of preventive remedies was thus 
treated of by the former Common Law Com- 
missioners {Third Beport, pp. 18, 19) : — 

" The ordinary scope of the legal remedy is to 
^* give compensation or redress for injuries sus- 
^' tained, and it affords in general no means for 
^^ preventing their commission. On the other 
*' hand, the practice of the Courts of Equity, by 
" way of injunction, extends not only to the pro- 
'' taction of equitable rights, but of those also 
'^ for the violation of which an action lies at 
'^ common law. 

" A Court of Equity will, by injunction, restrain 
" waste in all cases. It will also restrain in 
^^ cases of irremediable mischief, i.e. such mischief 
^' as cannot, when committed, be adequately 
'^ compensated by damages. Equity has in this 
" respect gradually enlarged a jurisdiction, which 
'< it originally assumed by analogy to the case 
^' of waste ; and the instances in which it now 
" gives this species of relief, where common 
^' law rights are invaded, may be classed as 
"follows: 1. Waste; 2. Trespass, and Torts 



XIV INTRODUCTION. 

if^unctian. ^* in particular cases, where, if the defendant 

" were suffered to proceed in the commission 

'^ of the injury, there would be no adequate 

** remedy at law. The principal of these are, 

'^ trespass by the defendant's working from 

^' his own mine into the plaintiff's ; infraction 

'^ of copyrights or patent rights ; destruction 

" of deeds or chattels belonging to the plaintiff, 

'^ and having a peculiar value not to be estimated 

" in money (in which latter ca<«es the court 

" enforces restoration also) ; 3. Breach of con- 

'^ tract, where there is a contract to abstain from 

^' doing a specific thing, and the damage sus- 

*' tained by its violation cannot be precisely or 

^^ conveniently estimated in damages. Thus, if 

'^ a lessee covenant to spend all his hay on the 

" &rm, or if a person covenant not to carry on a 

** certain trade within a certain district, a Court 

" of Equity will restrain such party from removing 

" the hay, or carrying on the trade." 

There was no good reason why a Court of Law 
should not restrain violations of legal rights in 
the cases in which an injunction might issue for 
that purpose from the Courts of Equity. It was 
suggested that henceforth a party injured should 
not only be entitled to maintain an action, but 
that in the declaration he should be permitted 
to claim the prohibition of a wrongful act com- 
menced or threatened, either separately or to- 
gether with damages for any injury he had 
actually sustained. To make the plaintiff^s 
remedy complete, it was evidently essential to 
provide that the application for a prohibitory writ 
might be made at any stage of the cause, either 
before or after judgment ; and, for the protection 
of the defendant, that it should be granted or 
denied upon such terms, as to keeping an account, 
giving security, or otherwise, as should be thought 
just. 



INTHODDCTION. XV 

Accordingly, in all cases of breach of contract ipjunctim. 

or other injury, where the party injured is 

entitled to maintain and has brought an action, 
he may claim a writ of injunction against the 
repetition or continuance of such breach of con- 
tract, or other injury, or the committal of any 
breach of contract or injury of a like kind, arising 
out of the same contract, or relating to the same 
property or right (s, 97). 

The claim is to be made in the same manner as claim of 
the claim of a writ of mandamus (s. 79). The ^"i*""****^ 
writ of summons is to be in the same form as the 
writ of summons in a personal action, but on the 
writ and copy must be endorsed a notice, that in 
default of appearance the plaintifiP may, besides 
proceeding to judgment and execution for 
damages and costs, apply for and obtain a Writ 
of Injunction (s. 80). 

Having thus endorsed his writ, the plaintiff proceedings 
may in his declaration include a claim for "* ^ 

damages, or other redress (s. 79). The pro- 
ceedings in the action are to be the same, as 
nearly as may be, as the proceedings in an action 
to obtain a mandamus. Judgment may be given 
that the writ of injimction do or do not issue as 
justice may require ; and in case of disobedience, 
the writ of injunction may be enforced by attach- 
ment by the court, or when the court is not 
sitting, by a judge (s. 81). 

The claim of a writ of injunction need not 
necessarily be made when the writ of summons 
is sued out. It may be obtained at any stage of 
the cause at which it becomes necessary ; for the 
plaintiff may at any time, whether before or after 
judgment, apply ex parte for a writ of injunction, 
to restrain the defendant from the repetition or 
continuance of the wrongful act or breach of 
contract complained of, or from the committal of 
any breach of contract or injury of a like kind, 



XVI INTRODUCTION. 

Injunction, arising out of the same contract, or relating to 

the same property or right (s. 82). The writ, if 

such an application be made, may be granted or 
denied, upon such terms as to its duration, keep- 
ing an account, giving security, or otherwise, as 
may seem reasonable and just (s. 82). 

The application may be made to, and the writ 
be issued by order, either of the court or a judge ; 
but any order made by a judge, or any writ 
issued by virtue thereof, may be discharged, or 
varied, or set aside by tiie court, on application 
by any party dissatisfied with such order (s. 82). 



INTRODUCTION. XVU 



Chapteb III. — Discovery. 

Th£R£ is no stronger proof that the powers of 
Courts of Common Law have been insufficient 
for the proper administration of justice, than the 
fact, that for the purposes of an action, one party 
has hitherto often been obliged to resort to a 
Court of Equity, to compel the discovery either of 
facts, exclusively within the knowledge of the 
opposite party, — or of docummtSy as to which he 
was ignorant in whose custody they were. 

The Courts of Law may and will compel the ^JJJJJJJL^ 
production of documents for the purpose of being 
stamped, or the inspection of documents upon 
which the action or defence is immediately 
founded, or which are necessary for the purpose 
of evidence in which the applicant for inspection 
has a direct interest, or which are held by the 
opposite party ip a fiduciary capacity. So inspec- 
tion will be ordered of certain documents of a 
public character, such as the rolls of a manor or 
the books of a corporation. But these powers 
being found insufficient, the statute 15 <& 16 
Vict., c. 99, s. 6., enabled the courts, upon the 
application of either of the parties to an action, 
to compel the production and inspection of a 
document in the possession of the opposite party, 
in all cases in which such inspection might be 
ordered by a Court of Equity. This power could 
only be exercised, however, when the applicant 
could satisfy the court, that the document of 
which he sought the production was in the posses- 



xvm 



INTRODUCTION. 



Ditoooery. 



JHtooveryqf 
facts.' 



sion of his adversary ; and applications under 
this statute have constantly failed for want of 
the power possessed by Courts of Equity, but 
which the statute did not confer upon the Courts 
of Common Law, viz., that of compelling a 
preliminary discovery by either party, of what 
documents he had in his possession or power 
- relating to the matters in controversy. 

That it was the intention of the Legislature 
to grant to the Courts of Common Law, a 
power of discovery of documents equally exten- 
sive with that possessed by Courts of Equity, 
there can be no doubt whatever. From the 
defect above pointed out, the intention of the 
L^islature has been frustrated ; but effect to 
that intention has been given by the new statute, 
which provides that upon the application of either 
party, and upon an affidavit by such party of his 
belief that any document, to the production of 
which he is entitled for the purpose of discovery 
or otherwise, is in the possession or power of the 
opposite party, the court or a judge may order 
the party against whom such application is made 
to answer, on affidavit, what documents he has in 
his possession or power, relating to the matters 
in dispute, or what he knows as to the custody of 
such documents, and whether he objects (and if 
so, on what grounds) to the production of such 
as are in his possession or power (s. 50). Upon 
such affidavit being made, the court or judge may 
make such further order thereon as shall be just 
(s. 50) ; for the party may have the documents, 
and yet have good grounds on which to object to 
their production. 

The Courts of Common Law have hitherto 
possessed no power of compelling discovery of 
facts within the knowledge of an adverse party. 
By the recent change in the law of evidence, each 
party may no doubt be called as a witness by his 



INTRODUCTION. XIX 

Opponent. But this course is one which can only iHteowry. 

be resorted to in the most desperate emergency ; 

for it cannot be expected that a party, ignorant of 
what his adversary will swear, shall put so 
interested a witness into the box. For the dis- 
covery, previous to the trial, either of facts or of 
documents, the party desiring it has hitherto had 
no alternative but to resort to a Court of Equity, a 
proceeding involving much delay and great ex* 
pense ; both of which, it would seem, might be 
avoided by allowing the necessary proceedings to 
be had in the court in which the action is pend- 
ing. It appeared to the Commissioners, and it 
seems not unreasonable, that were an oppor- 
tunity afforded for the examination of the parties, 
upon all matters relating to the questions in 
dispute, prior to the trial, facts exclusively in the 
knowledge of the ^opposite party might not only 
he discovered, but the trouble and expense of 
producing evidence of facts, which he was pre- 
pared to admit, might be entirely saved. Such an 
examination might also tend to make manifest 
the matters really in contest between the parties. 

The Commissioners, in pointing out the advan- 
tages of this power of discovery, expressed their 
opinion to be^ that in some cases, such a prelimi- 
nary discovery might altogether obviate the 
necessity of a trial, by compelling a party to 
admit &cts decisive of the case upon the merits. 
" A power of preliminary discovery," they re- 
mark, " would likewise tend to expose the motives 
" of groundless actions brought for vexation, and 
" of unfounded defences set up and persisted in 
" for delay. It would, moreover, have a most 
" wholesome effect in preventing false pleas from 
" being put on the record ; for as soon as the ex- 
*' amination of the party had made manifest the 
" falsehood of the plea, a judge might be applied 
" to to disallow the pleading, at the expense of 



XX 



INTRODUCTION, 



JtUerroffCi- 
tories. 



Ditotnertf. *' the party pleading it. If the very existence of 

** such a power had not the effect of preventing 

'' the necessity of its exercise, it would at least 
'^ aid the court in extirpating frivolous and' im- 
" proper litigation." — {Second Report, p. 36.) 

Accordingly, in all causes, the plaintiff may, 
with the declaration, and the defendant may with 
the plea, or either of them may, at any other 
time, deliver to the opposite party or his attorney 
interrogatories in writing upon any matter as to 
which discovery may be sought, and require such 
party within ten days to answer the questions in 
writing by affidavit, to be sworn and filed in the 
ordinary way (s. 51). 

The leave of the court or of a judge is a 
necessary preliminary in all cases ; and in the case 
of a body corporate being the party to be in- 
terrogated, any of the officers' may be required to 
answer the interrogatories (s. 51). 
AffiOaioiL The application for the order allowing inter- 

rogatories to be delivered, must be made upon an 
affidavit of the party proposing to interrogate, 
and his attorney or agent, stating that the depo- 
nents believe that the party proposing to inter- 
rogate will derive material benedHt in the cause 
from the discovery which he seeks ; that there is a 
good cause of action or defence, as the case may 
be, upon the merits ; and, if the application be 
made on the part of the defendant, that the dis- 
covery is not sought for the purpose of delay 
(s. 52). If, from unavoidable circumstances, the 
plaintiff or defendant cannot join in the affidavit, 
the court or a judge may, upon affidavit of the 
circumstances by which the party is prevented 
from so joining therein, allow the interrogatories 
to be delivered without the affidavit (s. ^2). 
If the party seeking discovery is a body cor- 
porate, the affidavit is to be made by their 
attorney or agent (s. 52). 



INTRODUCTION. XXI 

Finally, any person omitting, \vithout just DiKovery. 
cause, sufficiently to answer all questions as to 
which a discovery is sought, will be deemed to 
have committed a contempt of the court, and be 
liable to be proceeded against accordingly 
(s. 51). The time for answering the interro. 
gatories may be extended by order of the court or 
a judge. 

The power of interrogating an adverse party is ^JSLnST* 
not to be confined in its exercise to the written jNutiet. 
questions above referred to. 

In case of omission, without just cause, to 
answer sufficiently the written interrogatories, 
the court or a judge may direct an oral examin- 
ation of the interrogated party before a judge or 
master (s. 53). For this purpose, the court by 
a rule, or a judge by an order, may command 
the attendance of the party to be interrogated, 
before the person appointed to take such ex- 
amination, for the purpose of being orally exa- 
mined, and may impose in such rule or order, as 
the case may be, such terms as to such examin- 
ation, and the costs of the application, and of the 
proceedings thereon, and otherwise, as may seem 
just (s. 53). The production of writings or 
other documents may also be commanded by the 
rule or order. 

The rule or order for an examination is to be 
proceeded upon in the same manner as has been 
usual in the case of an order for the examination 
of witnesses upon interrogatories (s. 54). And 
the depositions are to be returned to and kept in 
the master's office of the court in which the pro- 
ceedings are pending; and office copies given 
out, and the depositions used, as are the depositions 
now taken on a conmussion for the examination 
of witnesses (s. 55). 

The judge or master named in any rule or 



XXU INTBODUCTION. 

jHaanery. Order for taking the oral examination of a party 

may make, if need be, a special report to the 

court, touching such examination, and the conduct 
or absence of any witness or other person thereon 
or relating thereto ; and the court may take such 
proceedings upon such report as justice may 
require, and as may be instituted and made in any 
case of contempt of the court (s. 56). The 
costs of the proceedings on the oral examfnation 
of a party, are in the discretion of the court or 
judge by whom the rule or order for the ex- 
amination is made (s. 57). 

Connected with the discovery of facts and 
documents, for obtaining which the procedure I 
have endeavoured to describe has been provided, 
is the inspection, by a party or by the jury, of 
premises or chattels in the possession or under 
the control of his opponent. There has hitherto 
been no adequate means whereby this inspection 
could be obtained. 

intpeetim^ The Jury Act (6 Geo. IV. c. 50. s. 23) allows 
Sattrfs! a rule for a view by the jury, but confines it to 
" the place in question." A narrow construction 
has been put upon this Act. Thus in an action 
for the value of work done to the defendant's 
house, the defence being the bad quality of the 
work, a rule for a view of the house was set aside. 
The inspection of the work in such a case would 
obviously have materially assisted the judgment 
of the jury. So will an inspection in all actions 
in which the quality or construction of machinery, 
or the condition or value of goods, are in dispute. 

^^ Inspection by parties and their witnesses is in 
'^ many cases requisite, in order to do equal justice. 
** The party in whose possession the object sought 
'' to be inspected is, has opportunities of showing 
^^ it to any persons, and selecting such only as are 
** favourable to his own views ; other evidence 
^^ equally important may be excluded altogether, if 



INTKODUCnON. XXUl • 

'* the opposite party is debarred from obtaining m&aawry. 

" inspection." {^econd Eeport, p. 37.) The Com- 

mon Law Commissioners, in recommending^ that 
an inspection of premises or chattels should be 
obtainable by a party for himself, the jury, or his 
witnesses, expressed an opinion ''that the con- 
" troversy between the parties might be decided by 
" the inspection. If the persons inspecting did not 
" entertain an opinion favourable to the party on 
" whose behalf they were called, further litigation 
" would be felt to be useless, and the action might 
"be settled without further expense." — {Second 
Report y p. 37.) 

The recommendation of the Commissioners has 
been adopted by the Legislature. Either party 
to an action may now apply to the court or a 
judge for a rule or order for the inspection by 
the jury, or by himself, or by his 'witnesses, of 
any real or personal property, the inspection of 
which may be material to the proper determination 
of the question in dispute ; which rule or order 
may be made upon such terms as to costs and 
otherwise as such court or judge may direct 
(s. 58). 



XXIV INTRODUCTION. 



Chapteb IV. — Equitable Defences. 

Thebe are some cases in which Courts of Law 
and Courts of Equity apply different rules of right 
and wrong to the same subject-matter, the most 
glaring instance of which occurs where a Court of 
Law is obliged to hold untenable a defence, which 
a Court of Equity considers valid. A Court of 
Law must consequently give a judgment in favour 
of the plaintiff*, which a Court of Equity imme- 
diately restrains him from enforcing. ^'Thus 
*^ when one of the parties to a deed under seal has 
" * • * entered into some agreement not under 
'^ seal, by which another party to the deed would 
" be absolved from the performance of his cove- 
'' nant, but for the circumstance of its being 
" under seal (which * * * nullifies in a Court of 
^^ Law the defence arising out of such an * * 
« agreement, and subjects the covenanting party 
'^ to a judgment for the damages occasioned by 
^' his breach of covenant, thus left technically 
'^ unexcused), a Court of Equity will interpose, 
^' and, disregarding the mere formality of the 
^^ seal, will by injunction perpetually prohibit the 
" party, whose * * * agreement but for that for- 
^^ mality would have constituted a defence, from 
^^ enforcing the judgment which he has obtained, 
'^ and which, but for the imperative strictness of 
^' the law, the Common Law Courts would not 
" have pronounced." 

It would be out of place to attempt here any 
sketch of the long conflict which took place 



INTRODUCTION. XXV 

between the Courts of Law and the Court of J^q^iiobie 
Chancery, and which came to a climax in the ^^"^^^ 
time of Lord Coke and Lord Chancellor Elles- 
mere. It has long bee^ notorious that the 
Courts of Common Law did not possess sufficient 
power to prevent the law, as administered by 
them, from being made the means of vexation 
and expense. Whether they have the power now 
remains to be seen. The Common Law Com- 
missioners recommended that these courts should 
be empowered to receive equitable defences by 
way of plea in every case in which the party 
pleading them would be entitled to relief in 
equity ; and that in cases where such relief in a 
Court of Equity would be conditional or discre- 
tionary, the Courts of Law should have power 
to give, in a summary way, the same relief against 
actions pending therein, as might be obtained by 
resorting to the Court of Chancery. The Legis- 
lature has not, however, conceded to the Courts 
of Law, the summary jurisdiction proposed to be 
conferred on them, nor has it enabled these courts 
to repel in all cases inequitable defences, as, for 
instance, in ejectment, an outstanding legal estate 
held in trust for the plaintiff. In this action, no 
doubt, the names of the trustees who are possessed 
of the term may be inserted as claimants in the 
writ ; and they may thus recover possession of 
the premises for the real claimant. One very 
inequitable defence, however, can no longer be 
set up ; for it is specially provided, that in any 
action on a bill of exchange or otHer negotiable 
instrument, the court or a judge may order that 
the loss of the instrument shall not be set up, 
provided an indemnity be given against the claims 
of any other person upon such instrument 
(s. 87). 

Although, however. Parliament has not seen 
fit to carry out to the fullest extent the recom<* 
mendations of the Commissioners, it has conferred 

c 



XXVI INTRODUCTION. 

jsquUabie on the Courts of Common Law a most extensive 
De fence*. equitable jurisdiction. 

The defendant (or plaintiff in replevin) in any 
cause in any of the Superior Courts in which, if 
judgment were obtained, he would be entitled to 
relief against such judgment on equitable grounds, 
may now plead the &cts which entitle him to 
such relief by way of defence (s. 83) ; and the 
plaintiff may in like manner reply, in answer to 
any plea of the defendant, facts which avoid such 
plea upon equitable grounds (s. 85).* 

In case, however, it appears that any such 
equitable plea or equitable replication cannot be 
dealt with by a Court of Law so as to do justice 
between the parties, the court or a judge may 
order the same to be struck out, on such terms as 
to costs and otherwise, as to such court or judge 
may seem reasonable (s. 86). 

It would be quite impossible to enumerate, or to 
attempt even to enumerate, within any reasonable 
limit, the numerous cases in which a defence on 
equitable grounds may now be pleaded in an 
action at law. The mode in which Courts of 
JBquity have afforded relief to suitors against the 
judgments of a Court of Law has been by injunc- 
tion, and the rule upon which they have acted 
has been thus stated by text-writers : " Wherever 
^^ a party by fraud, accident, or otherwise, has an 
" advantage by proceeding in a court of ordinary 
'^ jurisdiction, which must necessarily make that 
" court an instrument of injustice, a Court of 
*^ Equity, to prevervt manifest wrong, will interpose 
'' by restraining the party whose conscience is 



'*' Any such matter which, if it arose before or daring 
the time for pleading, would be an answer to the action 
by way of plea, may, if it arise after the lapse of the 
period during which it could be pleaded, be set up by 
way of attditd qn&reid (s. 84). 



INTBODUCTION. XXVU 

'* thus bound from using the advantage he has im- Equitable 
" properly gained ;"* and " where relief would be ^^ /^^- 
" given in a Court of Equity against a legal right, 
" an injunction will be granted to restrain pro- 
" ceedings at law in respect of such legal right."'!' 

Any consideration, however brief, of the cases 
in which an equitable defence may be now pleaded 
at law would be worthless unless extended to a 
treatise. The cases in which Courts of Equity 
have hitherto interfered to restrain proceedings 
at law will be found collected and arranged in 
the learned and useful work of Mr. Drewry on 
Injunctions, a volume which must now become a 
text-book on the Common Law Side of West- 
minster Hall, and to which I must content myself 
with referring the reader. 



* Lord Bed., 127. Drew, on fnjunct., Introd. x.- 
+ 1 Madd, Ch. Pr., 187. 



c 2 



XXVlll INTKODUCTION. 



Chapter V. — Proceedings on the Trial of 

Issues of Fact. 

The proceedings on a trial by jury and the argu- 
ments for and against the preservation of that 
ancient institution, have been fully examined by 
the Common Law Commissioners in their Second 
Report. Into these arguments it would evidently 
be out of place to enter at present. The reader 
must consult the Report itself, as it is only to 
those recommendations of the Commissioners 
which have been carried into effect by the Legis- 
lature, that it is my intention at present to call 
his attention. 

The Commissioners were of opinion that in a 
large class of cases the intervention of a jury was 
unnecessary ; and that in other cases such a tri- 
bunal was mischievous, from its inability to deal 
with them. Under the first head may be classed 
those cases in which the question turns on the 
legal effect of evidence or of undisputed facts, 
and in which the verdict of the jury necessarily 
depends on the direction of the judge. Within the 
second category are those causes which, when 
brought before the jury, it is found necessary to 
withdraw from them and to submit to arbitration : 
this class comprehends all those actions in which 
arise complicated questions of account, in which 
figures and vouchers must be referred to. 

While of opinion that in the cases I have 
mentioned, the jury might advantageously be dis- 



INTRODUCTION* xxix 

pensed with, the Commissioners nevertheless did Trial by a 
not think themselves warranted, except in cases '^" ^' 
of mere account, in recommending that trial by- 
jury should be superseded, unless the parties 
themselves preferred that the cause should be tried 
by a judge. 



Trial by the Court or a Judge. 

Trial by jury, accordingly, continues to be the 
rule, but the jury may in some cases be dispensed 
with ; for the parties to any cause may, by con- 
sent in writing, leave the decision of any issue of 
feet to the court, provided the court, upon a rule 
to show cause, or a judge on summons, in their or 
his discretion think fit to allow such trial (s. 1). 

The parties must obtain the consent of the 
court or a judge, in order to have an issue of fact 
tried by the court ; but the judges are authorized 
to make a general rule or order dispensing with the 
necessity of such allowance, either in all cases or 
in any particular class or classes of cases which 
may be defined in such rule or order (s. 1). 

A rule or order having been obtained for the 
particular cause, or the cause itself being one 
within any general rule or order issued by the 
judges on virtue of the authority thus given to 
them, the Issues of Fact may be tried and deter- 
mined, and damages assessed where necessary, in 
open court, either in term or vacation, by any 
judge who might otherwise have presided at the 
trial thereof by jury (s. 1). 

The proceedings upon and after the trial, as to 
the power of the court or judge, the evidence, 
and otherwise, are to be the same as in the case 
of trial by jury ; and the verdict of the judge will 
be of the same effect as the verdict of a jury. It 
is expressly provided, however, that it shall not 



XXX 



INTEODUCTION. 



Trial by a 
Judge. 



Tridlsat 
Westmifuter 
a/ndin 
London. 



be questioned upon the ground of its being against 
the weight of evidence (s. 1). 

Where the Issues of Fact are left to the court, 
they need not necessarily be tried by a single 
judge. They may be tried by the judge, who 
would otherwise preside at the trial thereof by a 
jury, either with or without the assistance of any 
other judge or judges of the same court ; or if 
the cause be a country cause, with or without the 
assistance of the other judge incliKied in the 
commission oinisiprius (s. 1). 

In order to give increased facilities for the 
trial of causes in Westminster and London, any 
one of the judges of any of the courts may, at 
the request of the Chief Justice or Chief Baron, 
try the causes entered for trial in either of the 
courts, on the same days on which the Chief 
Justice or Chief Baron, or any other judge of 
the same court, may be sitting to try causes, so 
that the trial of two causes may be proceeded 
with at the same time (s. 2). The trial of every 
cause before such other judge may, if necessary, 
be entered of record, as having been had before 
the judge by whom such cause in fact was tried 
(s. 2). 

There need be no more well-founded complaints 
of delay in the Superior Courts ; for now they may 
appoint and hold sittings either in Banco, or for the 
trial of Issues in Fact by judge or jury, at any time 
or times, whether in term or vacation, (not being 
between the tenth of August and the twenty- 
fourth of October) (s. 95). And the several 
courts, or any judge thereof, may also make all 
such rules or orders upon the Sheriff or other 
person, as may be necessary to procure the attend- 
ance of a special or common jury, at such time 
and place and in such manner as may be thought 
fit Cs. 59). 



UrTBODUCTION. XXXI 

' So much for the trial of causes by a judge Arutmtum. 
without the assistance of a jury. The class of 
cases which it has been in practice found necessary 
to withdraw from a jury, and to submit to arbitra- 
tion, are those in which arise questions of account. 

With regard to these, it was suggested that 
the court or a judge, on the application of either 
party, at any time prior to the trial, or where the 
issue of fact was left to the judge, then the judge 
at the trial, should have power to direct the matters 
in issue to be referred to an officer of the court, 
or, in country causes, to the judge of any county 
court, or, if the parties preferred it, to an arbitrator 
appointed by themselves. The Legislature has 
adopted these suggestions; and a reference to 
arbitration may now be forced on a party, how- 
ever unwilling he may be to submit to it, and 
however desirous to leave his case in the hands of 
a judge or of a jury. The Commissioners were 
of opinion that '* provisions for securing, as far 
^' as practicable, a continuous process to the 
'^ end of the arbitration, and an abolition of those 
^^ frequent adjournments which are at present the 
'' bane of that mode of proceeding," should be 
made, were effect to be given to their recommenda- 
tions. The only provision however, that hsLA been 
made is one prescribing the making of the award 
within three months (s. 15). A reference, if 
made to a lawyer appointed by the parties, may 
nevertheless continue to be the tedious, expensive, 
and unsatisfactory proceeding which it has hitherto 
been ; for the costs to be incurred in three months 
may easily be made to exceed the value of the 
subject-matter in dispute. Any party to an action 
on whom an arbitration is forced, should, therefore, 
leave the reference to be made to an officer of 
the court or to a County Court Judge. Neither 
will have any interest to prolong the proceejdings 
by frequent adjournments, and the conduct of 



XXXU INTBODUCTIOX. 



ArbUration, either, if faulty, may be brought before the 
court — while the parties to the action have in 
the position of the arbitrator some guarantee for 
the proper conduct of the reference. 



Comptdsory Eeference to Arbitration, 

No less than fourteen sections of the statute, 
and these among the longest of all, are required to 
carry out the suggestions of the Commissioners. 
I shall endeavour to state the effect of them as 
concisely as possible. 

Beference ^^ ^^ ^"7 time after the issuing of the writ, it 

before trial, be made to appear, by either party, that the 
matter in dispute consists wholly or in part of 
matters of mere account, the court or a judge may 
either decide such matter in a summary manner, 
or order that it be referred, either wholly or in 
part, to an arbitrator appointed by the parties, 
or to an officer of the court, or, in country causes, 
to a judge of the county court (s. 3). The deci- 
sion of the court or the order of the judge, if the 
matter be disposed of summarily by either, or the 
award or certificate of the referee is to be enforce- 
able by the same process, as the finding of a jury 
upon the matter referred (s. 3). 

Cases involving matters of account may not, 
however, be referred before the trial. It may be 
that at the trial only will the case appear to be 
one of account. If the cause be tried by a judge 
with the assistance of a jury, it would seem 
doubtful whether it can (unless of consent), be 
withdrawn from the jury by the judge and either 
disposed of summarily or referred (s. 3). 

Reference at If, however, the cause be tried by a judge 

oui trial. without a jury, it is specially provided that he 

may order any matter of account which may arise 

to be referred to, — an arbitrator appointed by the 



INTRODUCTION. XXXUl 

• 

parties, or — to an officer of the court, or, — JrbitnUion. 
in country causes, to the judge of a county court, 
•^whose award or certificate is to have the same 
effect as the award or certificate of a referee before 
trial (s. 6). The reference at the trial need not 
necessarily be of all the matters in dispute be- 
tween the parties. If not so, the judge may pro- 
ceed to try and dispose of any other matters in 
question, not referred, in like manner as if no 
reference had been made (s. 6). 

But questions of law, as well as questions of 
fact, may, and do constantly arise out of mere 
matters of account. This coutingency is provided 
for. If it appear that the allowance or disal- 
lowance of any particular item depends upon a 
question of law fit to be decided by the court, 
the judge in directing the matter to be referred, 
may direct a case to be stated for the opinion of 
the court, whose decision is to betaken and acted 
upon by the arbitrator as conclusive (s. 4), So 
if the allowance or disallowance of an item 
depends on a question of fact, fit to be decided 
by a jury or by a judge alone, without a jury, 
an issue may be directed to be tried either by a jury 
or by a judge ; and the finding of the jury or of 
the jud^e is to be taken by the arbitrator as con- 
clusive (s. 4). 

The proceedings upon this arbitration, except Proceedings 
when otherwise directed by the statute itself, are to JS^ J^^: 
be conducted in like manner, and subject to the ^^"^ 
same rules and enactments, as to the power of the 
arbitrator and of the court, the attendance of 
witnesses, the production of documents, enforcing 
or setting aside the award, and otherwise, as have 
hitherto been the proceedings upon a reference 
under a rule of court or judge's order (s. 7). 

In aijy case where a reference is made to arbi- 
tration, in any of the modes I have pointed out, 
the court, or a judge may, at any time, remit the 

c 3 



XXXIV INTRODUCTION. 

jmtratum. matters referred to the reconsideration and re- 
— determination of the arbitrator (s. 8). But the 
arbitrator may now, if he thinks fit, state his 
award in the form of a special case, for the opinion 
of the court, and judgment may be entered 
accordingly (s. 5). 

The application to set aside the award on a 
compulsory reference must be made within *the 
first seven days of the term following the publica- 
tion of the award. If no such application is 
made, or no rule is granted, or a rule granted is 
afterwards discharged, the award is to be final 
(s. 9). But that there may be no delay in the 
successful party's obtaining the fruits of the 
award in his favour, it is provided that an award 
made on a compulsory reference may, by the 
authority of a judge, be enforced at any time, 
after seven days from the time of publication, 
notwithstanding that the time for moving to set it 
aside has not elapsed (s. 10). 

Amendments in the Law of Arbitration, 

Such are the provisions of the statute relating 
to the compulsory reference of matters of account 
" which cannot conveniently be tried in the 
'* ordinary way." The Act contains several other 
sections with reference to arbitrations generally, 
which it seems more convenient to mention in this 
place, than to extend into a separate chapter. 
These enactments are to be regarded, in every 
sense, as amendments in the law. 

livery agree- Every agreement or submission to arbitration 
rw!ybemo^ by consent, whether by deed or instrument in 
arvie ^ writing, not under seal, may, on the application 
of any party thereto, be made a rule of any one 
of the Superior Courts of Law or Equity,* unless 

- - - '■ — — ' — 

* This enactment is confined to the Superior Courts at 
Westminster. 



cowrt. 



IHTBODUCTION. XXXV 



the agreement or submission contain words pur- ArbUratum. 
porting that the parties intend that it should not 
be made a rule of court (s. 17). 

If the agreement or submission provides that it 
shall or may be made a rule of one court in par- 
ticular, it may be made a rule of that oourt only ; 
and when it is or has been made a rule of any one 
court, no other court will have any jurisdiction to 
entertain any motion respecting the arbitration or 
award (s. 17). 

Whenever parties agree in writing that any ProctecUnys 
then existing or future differences between them ^^^a/ur 
shall be referred to arbitration, and any party so agreement to 
agreeing, nevertheless, commences an action at ^'^'^^^' 
law, or suit in equity, against the other party, in 
respect of the matters agreed to be referred, the 
court in which the action or suit is brought, or a 
judge thereof, may stay all proceedings in such 
action or suit, on such terms, as to costs and 
otherwise, as may seem fit (s. 11). 

The proceedings are to be stayed on the appli* 
cation of the defendant, and the court or judge, 
when applied to for the rule or- order, must be 
satisfied, ^r«/, that no sufficient reason exists why 
the matters in dispute cannot or ought not to be 
referred to arbitration according to the agreement ; 
— and, secondli/y that the defendant was and is 
ready to join in all acts necessary and proper for 
causing the matters to be decided by arbitration 
(s. 11). 

Any rule or order staying proceedings may, at 
any time afterwards, be discharged or varied as 
justice may require (s. 11). 

Several provisions have been made to prevent 
an arbitration coming to an end without an award 
being made from the failure to appoint arbitra- 
tors, or an umpire, by the parties who ought to 

do 80. 



XXXVl INTRODUCTION. 

Arbitration. Thus, — if ill any arbitration the document au- 
Appointmmt tliorizing the reference provides that the reference 
^arbitraior shall be to a single arbitrator, and the parties do 
%eooSrt , not concur in the appointment of an arbitrator ; 
or — 

if any appointed arbitrator refuses to act, or 
becomes incapable of acting, or dies, and the 
parties do not concur in appointing a new one ; 
or — 

if, where the parties or two arbitrators are at 
liberty to appoint an umpire, such parties or arbi- 
trators do not appoint an umpire ; or — 

if any appointed umpire refuses to act, or be- 
comes incapable of acting, or dies, and the parties 
or arbitrators respectively do not appoint a new 
umpire ; — 

then and in every such instance, any party may 
serve the other party or the arbitrators, as the case 
may be, with a written notice to appoint an arbi- 
trator or umpire, as the case may be, — and if, 
within seven days after service of such notice, 
no arbitrator or umpire is appointed, any judge 
of any of the Superior Courts of Law or Equity 
may appoint either an arbitrator or umpire, as the 
case may be (s. 12). 

If, however, from the terms of the document 
authorizing the reference, it appears that it was not 
intended that a vacancy caused by the refusal or in- 
capacity to act, or death of an appointed arbi- 
trator or umpire should be supplied, no appoint- 
ment can' be made to supply the vacancy (s. 12). 

When required, the appointment is to be applied 
for and made on a summons to be taken out by 
the party who has served the notice, and the arbi- 
trator or umpire, as the case may be, when 
appointed, is to have the like power to act in the 
reference, and to make an award as if he had been 
appointed by consent of parties (s. 12). 



INTRODUCTION. XXXVil 

A reference cannot be rendered nugatory by Arutrat&m, 
the failure of one party to appoint one of the ar- 
bitrators; for now, when a reference is or is 
intended to be to two arbitrators, one to be 
appointed by each party, either 'party in case of 
the death, refusal to act, or incapacity of any 
arbitrator appointed by him, may substitute a new 
arbitrator, unless the document authorizing the 
reference show that it was intended that the 
vacancy should not be supplied (s. 13). 

If on such a reference one party fails to appoint oneqfimo 
an arbitrator for seven days after the other party ^^JJfJJ 
shall have appointed an arbitrator, and shall havefV«ree. 
served the party failing to appoint with a notice 
in writing to make the appointment of his arbi- 
trator, the party who has appointed may appoint 
such his arbitrator to act as sole arbitrator (s. 13). 
An award made by such sole arbitrator will be 
binding on both parties just as if the appointment 
had been by consent, but the court or a judge 
may revoke the appointment, on such terms as 
may seem just (s. 13). 

Authority to appoint an umpire need no longer -Ampoinfynmt 
be given to arbitrators. An express provision to Sln^re. 
such effect must be made, if it be intended that the 
arbitrators shall not have power to do so ; for when 
a reference is to two arbitrators, and the document 
authorizing it does not show that it was intended 
that there should not be an umpire, or provide 
otherwise for the appointment of an. umpire, the 
two arbitrators may now appoint an umpire, at 
any time within the period during which they 
have ' power to make an award, unless they are 
called upon to make the appointment sooner 
(s. 14). They may be called upon to make the 
appointment, by a written notice from any of the 
parties to the reference, and the appointment 
must be made within seven days after the service 
of such notice, or the party giving notice may 



XXXVIU INTBODUCTIOK. 

Arburation. have an Umpire appointed on a summons at ch^un- 
bers (s. 12). 

Award to be The Commissioners, we have seen, recom- 
m^m three mended that provisions should be made for secur- 
ing, as far as practicable, a continuous process to 
the end of an arbitration, and an abolition of the 
frequent adjournments which have hitherto been 
the bane of that mode of proceeding. It has 
accordingly been enacted that an arbitrator acting 
under any document authorizing a reference, or 
under any compulsory order of reference, or under 
any order referring the award back, shall make 
his award under his hand within three months* 
after he has been appointed, and has entered on the 
reference, or been called upon to act by a notice 
in writing from a party to the reference (s. 15). 
The parties may, however, by consent in writing, 
enlarge the term for making the award ; and the 
court of which the document authorizing the refer- 
ence, or any order of reference is or may be made 
a rule, or any judge thereof, may enlarge the 
term for making the award (s. 15). If no period 
be stated for the enlargement, it will be deemed 
to be an enlargement for one month (s. 15). 

That delay may be avoided when arbitrators 
cannot agree, it is further provided that any um- 
pire when appointed may enter on the reference 
in lieu of the arbitrators, if the latter have allowed 
their time or extended time to expire without 
making an award, or have delivered to any party, 
or to the umpire himself, a notice in writing 
stating that they cannot agree (s. 15). 

The power of an arbitrator has been extended, 
by a provision, that upon any reference where the 
submission is or may be made a rule of court, 
the arbitrator may, as in the case of a compulsory 



♦ Unless the Element to refer or the order of refer- 
ence contains a different limit of time. 



mm^'^^m'^^m 



^m 



na 



INTRODUCTION. 



XXXIX 



reference, state his award in the form of a special JrbUration. 
case for the opinion of the court (s. 5). And an 
award directing the possession of lands to be de- 
livered to a party, may now be enforced sum- 
marily, or when it directs that possession of any 
lands shall be delivered to any party, or that any 
party is entitled to the possession of any such 
lands, the court may order any p^rty to the refer- 
ence who is in possession, to deliver possef^on to 
the party entitled thereto, pursuant to the award 
(s. J 6). Any such rule or order to deliver pos- 
session is to have the effect of a judgment in eject- 
ment against every person named in it, and 
execution may issue, and possession be delivered, 
by the sheriff as on a judgment in ejectment 
(s. 16). 



Proceedings on a Tried by Jury, 

4 

On the trial of issues of feet the party on whom -^ddrma to 
lies the burden of making out the affirmative states ^^'^' 
the case to the jury, and then adduces evidence in 
support of it. The opposite party next addresses 
the jury, and if he has evidence to bring forward, 
produces it ; after which the counsel for the party 
w^ho commenced has the right of replying gene- 
rally on the whole case. The party who begins 
has thus the first word and the last. He has also 
a further and greater advantage; for the party 
who comes second is only once heard, and that 
before his proofs have been produced. It often 
happens that the evidence does not turn out as 
was anticipated ; new facts come out, or really 
unexceptionable witnesses are damaged in cross- 
examination. The case may be not less good, 
the witnesses not less entitled to credit, if an op- 
portunity were afforded for explanation ; but 
" the counsel's mouth is closed, while his oppo- 
" nent, unchecked by the fear of a reply, takes 



Xl INTRODUCTION. 

Trial by " advantage of every discrepancy between the 
'^"' 'y* ** statement and the proof, of every ground for 

" assailing the character and veracity of the 
'^ witnesses, and frequently produces an im- 
" pression inconsistent with the true justice of 
*^ the case, and which the observations of the 
*' judge, who is constrained to adopt a more mea-r 
** sured tone, do not always succeed in removing. 
** So great is the advantage of the reply felt to 
'^ be in practice, that, generally, one great object 
'^ of a counsel for a defendant is, if possible, to 
*' avoid calling witnesses, even though conscious 
*' that, othf»rwise, his witnesses would improvfe 
'^ his case. The exercise of a sound discretion on 
^^ this point is one of the most difficult parts of 
" the duty of an advocate ; and many verdicts 
'' are doubtless lost, on the one hand, by exposing 
" the case to the danger of a reply, and on the 
" other, by the fear of it operating to the keep- 
" ing back of evidence which might have been 
" decisive with the jury." — (Second Report, p. 9.) 

If the second party does not produce evidence, 
the position of the parties is simply reversed. 

" The inconvenience and injustice of this system 
" have long been felt and complained of, * * * 
'^ but the practice has become the more grievous, 
'^ since, by the recent alteration of the law, the 
^^ parties to a suit have been made admissible, 
^^ and consequently, in practice, necessary wit- 
" nesses. The motives for attacking and reflect- 
'^ ing upon the adverse party in the cause are so 
^' obvious that we cannot wonder that such a 
" result should very frequently occur ; and the 
** injustice of leaving a plaintiff or defendant 
'^ exposed, first, to a severe cross-examination, 
^^ and then to hostile observations, without giving 
*^ his counsel an opportunity of vindicating his 
" conduct and character, has been very sensibly 
" felt."— (5ecortcZ RepoH, p. 9.) 



INTRODUCTION. xli 

But although the palpable injustice bf the system Trial by 
lias long been felt and complained of — although, '^" ^' 
indeed, it was denounced by the former Com- 
mon Law Commissioners — ^it is only now that an 
alteration has at length been effected. Hence- 
forth, upon the trial of any cause, the addresses to 
the jury are to be regulated as follows : The 
party who begins, or his counsel, is to be allowed, 
in the event of his opponent not announcing at 
the close of the case of the party who begins, his 
intention to adduce evidence, to address the jury a 
second time at the close of such case, for the 
purpose of summing up the evidence. The party 
on the other side, or his counsel, is to be 
allowed to open the case, and al$>o to sum up the 
evidence (if any) ; and the right to reply is to be 
the same as at present (s. 18). 



Adjournment of the Tried, 

One of the drawbacks hitherto attendant on a 
trial by jury has been the necessity of proceeding 
with it till a verdict were given, although cir- 
cumstances occurred which rendered an adjourn- 
ment desirable. A party may be taken by 
surprise by his opponent's case, or a witness or 
document may become unexpectedly necessary, 
and not be forthcoming. The party has hitherto 
been obliged to submit to a nonsuit or a verdict 
against him, as the case might be, although a new 
trial would afterwards be granted. But unneces- 
sary expense and delay were often thus incurred, 
because time would not be given to enable the 
deficient matter to be supplied. '^ If the tribunal 
'^ be a permanent one, an adjournment may 
^^ readily be made ; but with a shifting tribunal, 
" the members of which are drawn together from 
'* different and sometimes distant places, it is ob- 
" viously difficult, if they are once allowed to 



Xlii INTRODUCTION. 

Tritdby " disperse, to insure their returning at the ap- 
'^** *^- " pointed time, as also to prevent the possibility 

^< of conununications on the subject of the cause 
'^ being held with them in the interval." But 
the rigorous inflexibility with which a cause once 
commenced has hitherto been carried on to its 
close, seemed capable of being modified with 
advantage; and accordingly the court or the 
judge at the trial of any cause, where they or he 
may deem it right for the purposes of justice, 
may npw order an adjournment for such time, 
and subject to such terms and conditions as to 
costs and otherwise, as they or he may think fit 
(s. 19). 

It will be recollected that the sittings of the court 
or of a judge for the trial of issues in fact, need 
not be confined to the sittings in and after term. 
Sittings may be appointed for any time in term 
or vacation, not being between the tenth of 
August and the twenty-fourth of October (s. 95) ; 
and the courts, or any judge, may make such 
orders as are necessary for the attendance of the 
jury at such time and place and in such manner 
as they or he may think fit (s. 59). 



INTRODUCTION. xUii 



Chapter VI. — Proceedings after the 

Trial. 

The jury are bound, on a question compounded specua cok. 

of law and feet, to take the law from the judge. 

If unable to come to a satisfectory conclusion as 

to the combined question of law and fact, they 

may find the facts specially, t. e. they may find a 

special verdict, and leave the application of the 

law to the court. When the facts are not in 

dispute, this course is often adopted by the parties. 

Upon the judgment of the court, applying the law 

to the facts found in the special verdict, error 

may be brought. 

Another course sometimes resorted to, when 
the facts are agreed upon, is to allow a verdict to 
be found for the plaintifi", subject to a special case, 
t. e,y a case specially stating the fects, on which 
the court will afterwards determine the law as 
applicable thereto, and alter the verdict, if neces- 
sary, to one for the defendant. This mode of 
proceeding has been found so convenient, that 
the 3 <& 4 Will. IV, c. 42. s. 25, enabled the parties 
to an action to state a special case immediately 
after issue joined, and to avoid the expense and 
delay of a trial altogether. The Common Law 
Procedure Act, 1852, gave further facilities. It 
enables the parties to an action immediately after 
the issue of the writ to state any question of law 
in a special case for the opinion of the court with- 
out any pleadings whatsoever. 



xliv INTRODUCTION. 

Special Cote. There has hitherto existed a great drawback 
on this mode of proceeding ; i, e., that ^he judg- 
ment of the court on a special case, unlike the 
judgment on a special verdict, could not be taken 
to a Court of Error. It is generally on questions 
of legal difficulty that a special case is resorted 
to, and parties are naturally unwilling to debar 
themselves of the opportunity of an appeal against 
an adverse decision. There seems to be no suf- 
ficient reason why a special case should not be 
placed on the same footing as a special verdict, 
except where the parties agree to be bound by 
the decision of the court. 

Error ma Accordingly error may now be brought upon 
special omc. a judgment on a special case, in the same manner 
as upon a judgment upon a special verdict, un- 
less the parties agree to the contrary (s. 32). 
The proceedings, for bringing a special case 
before the Court of Error, are to be the same as in 
the case of a special verdict ; and the Court of 
Error may either affirm the judgment, or give the 
judgment which ought to have been given in the 
court below (s. 32). The Court of Error is 
required to draw any inferences of fact, from the 
facts stated in the special case, which the court 
where it was originally decided ought to have 
drawn (s. 32). 



Motion for a New Tricd^ ^c. 

The facts of the case being ascertained, the 
judge frequently directs a nonsuit or a verdict to 
be entered. In such a case, with the view of 
avoiding a new trial, leave is generally reserved 
to the party against whom the judge has ruled, 
to move the court to set aside the nonsuit or the 
verdict, as the case may be, and to enter a 
verdict or nonsuit in his favour. 



INTRODUCTION. xlv 

In the event of the improper rejection or im- Motion for a 
proper admission of evidence, or of erroneous ^ '''^'' 
direction in point of law by the judge, the party — 
whose evidence is rejected, or who objects to the 
admission of the evidence received by the judge, 
or to his direction in point of law, may either 
tender a bill of exceptions at the trial, or after- 
wards apply to the court for a new trial. The 
difference which has hitherto existed between the 
proceeding by a bill of exceptions and that by a 
motion for a new trial is, that, upon a bill of 
exceptions, the appeal is at once to the Court of 
Error, the court out of which the record issued 
being entirely passed over ; while, on a motion 
for a new trial, the decision of the court in Banco 
has hitherto been conclusive, no appeal being 
allowed. 

The proceeding by bill of exceptions has been mil of 
considered objectionable on three grounds : — exoepUoru. 

1. The Court of Error is compelled in case of 
the erroneous admission or reception of evidence 
to award a new trial, although the error may 
have been unimportant, and thft verdict would 
have been the same if the ruling had been other- 
wise. 

2. This mode of proceeding is altogether in- 
applicable to the case of a nonsuit or verdict 
directed by the judge, with a leave reserved to 
the party prejudiced thereby, to move to enter an 
opposite verdict or a nonsuit, a proceeding found 
to be very convenient, as, if the ruling of the 
judge be wrong, it saves the necessity of a second 
trial. 

3. The bill of exceptions must be tendered at 
the trial before verdict ; and though in practice a 
short abstract of the grounds of exception is 
stated merely at the bar, sufficient opportunity 



Xlvi INTRODUCTION. 

5<***^<'r * for consideration in cases of nicety or difficulty is 
Ac. not afforded to the parties. 

There are, likewise, objections to the proceed- 
ing by motion for a new trial, or to enter a non- 
suit or verdict on leave reserved. 

If the judge before whom the trial took plac^ 
is a judge of the court, out of which the nisi prius 
record issued, the judge whose decision is thus 
appealed against, forms one-fourth part, and not 
unfrequently one-third part of the court of appeal. 
In the event of one otlier member of the court 
agreeing with him, the court is equally divided ; 
and according to the rule of the courts, that when 
the court is equally divided, no rule shall be 
granted, the nonsuit or verdict stands, and the 
leave reserved to move for a different verdict 
becomes altogether illusory. 

In the next place, the decision of the court 
on a motion for a new trial, or to enter a verdict 
or nonsuit, has hitherto been final, and without 
appeal ; and thus, although the most important 
and difficult questions of law arise upon such 
motions, the result has been, that if the court 
upheld the ruling of the judge at the trial, and in 
so doing was wrong, the losing party was without 
redress. If, again, the court decided that there 
should be a new trial, as there was no appeal 
against such an order, the cause must have been 
again tried : at the second trial the judge ruled 
as the court had ruled ; and the party against 
whom the judge so ruled, might then tender 
exceptions to that ruling, and possibly obtain its 
reversal in a Court of Error. The second trial, 
in such a case, was purely formal, and yet it must 
have taken place, if the party intended to appeal 
from the judgment against him. If he appealed, 
and the Court of Error decided that the court 
below was wrong, the second trial was wholly 
thrown away. But that was not the climax. 



INTRODUCTION. xlvil 

The Court of Error could, on the bill of excep- Motion /or a 
tions, only award a venire de now, or new trial, ^ '^^'^ 

whereupon a third trial must have taken plaoe 

before justice could finally be done. 

It is difficult to believe that this extraordinary 
system of procedure should have been persisted 
in so long. The Common Law Commissioners 
could ^^ see no reason why there should not be an 
" appeal on motions for new trials, on which the 
^^ most important and difficult questions are 
" decided ;" and such an appeal has accordingly 
been given. 

I shall endeavour to describe shortly, the nature 
of the proceedings. 

Prooeedings on Appeals on Motumsfor a New Tried 
or to enter a Verdict, ^c. Sfc, 

When a nonsuit or verdict has been directed 
by the judge at the trial, and leave reserved to 
move to enter a verdict or nonsuit, the rule, when 
moved for, is either refused at once, or, if granted, 
is a rule nist, which, on cause being shown, is 
discharged or made absolute. Hitherto, as we 
have seen, the decision of the court has been 
final ; but now in all cases of rules to enter a 
verdict or nonsuit upon a point reserved at the 
trial, if the rule to show cause be refused ; — or 
granted, and then discharged or made absolute, 
the party decided against may appeal (s. 34). 

The party prejudiced by the ruling of the 
judjre may always move for a new trial. The 
decision of the court in this case was formerly 
also final. Now, however, in all cases of motions 
for a new trial, on the ground that the judge has 
not ruled according to law*, if the rule to show 

* Where the application for a new trial is upon matter 
of discretion onlv, as on the ground that the verdict was 
against the weignt of evidence or otherwise, no appeal is 
to be allowed (s. 35). 



xlviii 



INTRODUCTION. 



Notice of 
OippetiL 



Motion for a cause be refused, or if granted be then discharged 
2^ '^''^ or made absolute, the party decided against may 
appeal, — 

provided anyone of the judges dissent from the 
rule being refused, or, when granted, being 
discharged or made absolute, as the case 
may be, or, — 

provided the court in its discretion think fit that 
an appeal should be allowed (s. 35). 

The Exchequer Chamber and the House of 
Lords are the Courts of Appeal (s. 36) ; they 
have power to adjudge payment of costs, to order 
restitution and to award process (s. 42). 

No appeal is to be allowed unless notice be 
given in writing to the opposite party or his 
attorney, and to one of the masters of the court, 
within four days after the decision complained 
of, or within such further time as may be allowed 
by the court or a judge (s. 37). 

Notice of appeal is to be a stay of execution, 
provided bail to pay the sum recovered and costs, 
or to pay costs where the appellant was plaintiff 
below, be given, in like manner and to the same 
amount as bail in error, within eight days after 
the decision complained of, or before execution 
delivered to the Sheriff (s. 38). 

The appeal is to be upon a case to be stated by 
the parties, in which is to be set forth so much of 
the pleadings, evidence, and the ruling or 
judgment objected to, as is necessary to raise the 
question for the decision of the Court of Appeal 
(s. 39). In case of difference between the parties, 
the case is to be settled by the court, or a judge 
of the court appealed from. 

The Court of Appeal is to give such judgment 
as ought to have been given in the court below 
(s.41). When the appeal is from the refusal of the 
court below to grant a rule to show cause, and 



Bail. 



Jppealocue 
cmdpro- 



INTRODUCTION. xli 

the court of appeal grants such rule, the rule is Motion for a 
to be argued and disposed of in the Court of 2^ ^^'^^"^ 

Appeal (s. 40). Further proceedings in the 

action are to be taken upon the judgment of the 
Court of Appeal, as if that judgment had been 
given by the court in which the record originated 
(s. 41). 



INTBODUCTION. 



Chapter VII. — Execution by the 
Attachment of Debts. 

The remedy of the creditor against the property 
of his debtor seemed capable of being extended, 
by enabling the former, after judgment, to attach 
debts and monies of his debtor in the hands of 
third persons, and in this way to obtain satisfaction 
of his judgment. Hitherto there hajs been no 
process by which this could be done directly. 
The statute 1 & 2 Vict. c. 110, s. 12, extending 
the remedies of creditors against the property of 
their debtors, has proved of but limited use, by 
reason of its applying only to specific coin or bank 
notes, and debts secured by cheques, bills of 
exchange, promissory notes, bonds, specialties, 
and securities for money, which the debtor can 
easily secrete. The amount of these securities 
cannot be recovered by the creditor without their 
being actually seized, whilst debts not so secured, 
or the securities for which could not be actually 
seized, have not hitherto been available to creditors 
unless under a bankruptcy or insolvency. 

It has accordingly been thought advisable to 
enable a judgment creditor to proceed against the 
debtors of his debtor, by a process similar to that 
of " foreign attachment," which, it is well known, 
has been long used in the cities of London and 
Bristol. 



INTBODUCTION. ll 



Order of Attachment, 

A judge may now, upon the ex-parte appli- Attachment 
cation of any judgment creditor [upon affidavit ^^^^ 
by himself or his attorney stating that judgment 
has been recovered, and that it is still unsatisfied, 
and that any other person is indebted to the 
judgment debtor, and is within the jurisdiction], 
order that all debts owing by such third person 
(who is called the Garnishee) to the judgment 
debtor shall be attached to answer the judgment 
debt (s. 61). 

The judgment creditor, or his attorney, may, Diacaveryo/ 
however, be unable to make the affidavit necessary ^^^' 
to obtain an order for the attachment of the debts 
owing and accruing to the judgment debtor. If 
so, a discovery may be obtained from the judgment 
debtor of what property he has, capable of being 
thus taken in execution; for any creditor, who 
has obtained a judgment in any of the Superior 
Courts, may apply to the court or a judge for, 
and the court or such judge may make, a rule or 
order, that the judgment debtor should be orally 
examined as to any and what debts are owing to 
him (s. 60). 

This preliminary examination may be ordered 
to take place before a master of the court, or ' 
before such other person as the court or judge 
may appoint (s. 60). The production of books 
and documents may also be ordered. 

Upon the discovery had by such examination, 
which is to be conducted in the same manner 
as the oral examination of a party to the cause 
(ante p. xxi), the necessary affidavit may be made, 
and the order for attachment obtained. 



D 2 



Hi 



INTRODUCTION. 



AUaditnent 
of Debts. 

Service of the 
order. 



Pi-occedings 
where debt 
admitted. 



Proceedings 
Khere debt 
disputed. 



Proceedings against the Garnishee, 

The order fur attachment being obtained must 
be served on, or a notice thereof given to, the 
Garnishee ; for the service of the order or such 
notice thereof given in such manner as the judge 
may direct, is to bind such debts in his hands (s. 62). 

By the original order of attachment, or by any 
subsequent order, the Garnishee may be ordered 
to appear before the judge, or a master of the 
court, to show cause ^^ hy he should not pay the 
judgment creditor the debt due from him to the 
judgment debtor, or so much thereof as may be 
sutiicient to satisfy the judgment debt (s. 61). 

If the Garnishee does not dispute the debt due 
or claimed to be due from him to the judgment 
debtor, he ought to p ly the amount into court ; 
for if he does not forthwith pay into court the 
amount due from liim to the judgment debtor, or 
an amount equal to the judgment debt, or if he 
does not appear upon the summons, the judge 
may order execution to issue, and it may be sued 
forth accordingly, without any previous writ or 
process, to levy the amount due from the Garni- 
shee towards satisfaction of the judgment dfbt 
(s. 63). 

If, ho^«ever, the Garnishee disputes liis liability, 
he ou^ht to appear upon the summons ; and the 
judge, instead of making an order for execution, 
may order that the judgment creditor be at liberty 
to proceed against the Garnishee by writ, calling 
upon him to show cause why there should not be 
execution against him for the alleged debt, or for 
the amount due to the judgment debtor, if less 
than the judgment debt, and for costs of suit 
(s. 64). The proceedings upon suoli suit are to 
be the same, as nearly as may be, sus upon a writ 
of revivor issued under " The Common Law Pro- 
cedure Act, 1852." 



INTRODUCTION. lill 

Payment made by or execution levied upon Mtachmf^nt 
the Garnishee will be a valid discharge to him ^'^ ^^*"*- 
as against the judgment debtor to the amount 
paid or levied (». 66), 

A debt attachment book is to be kept at the 
master's offices, and copies of any entries made 
therein may be taken by any person (s. 66). 

The costs of an application for an attachment 
of debts are in the discretion of the court or of 
the judge (s. 67). 



liv INTBODUCTION. 



CUAFTER VIII. — SUMMABY PbOCEEDINOS IN 

Court. 

INCIDENTAI.LY to each Step in an action, the 
summary jurisdiction of the court may be exer- 
cised in setting aside proceedings, or in giving 
authority to a party to take various steps which 
may be necessary in the cause, such as to inspect 
documents, to examine witnesses upon interroga- 
tories, or the like. In the numerous proceedings 
of this nature, the court acts in a summary way 
upon motion, and the application is usually 
founded on the testimony contained in affidavits. 
If the application is opposed, it is resisted on 
evidence which is likewise brought before the 
court in affidavits. 

" This species of evidence " {Second Report^ p. 
32) ^^is, of all others, the most unsatisfactory. 
*^ All the circumstances which give to the system 
'' of English procedure its peculiar and charac- 
" teristic merits, — vivd voce interrogation, cross- 
^^ examination, publicity, examination in the pre- 
" sence of the tribunal, whereby an opportunity 
^' is afforded of observing the demeanour of the 
'' witness, — are here wanting ; and not only this, 
'' but the testimony is often not even the sponta- 
'' neous statement of the witness : the affidavit is 
" prepared for and sworn to by the deponent, 
'* often without the sense of responsibility which 
'' would bs felt by a witness when delivering a 
^' statement in his own words." 



INTRODUCTION. Iv 

Not only is there no effectual mode of ascer- Affidavit*. 
taining the means of knowledge, on which the 
conclusions sworu to have been arrived at by the 
deponent, but the manner of proceeding on motions 
founded upon affidavits has been found to be 
objectionable. Hitherto the party seeking the 
intervention of the court has been limited to the 
evidence adduced by him in the first instance, 
and been precluded from filing fresh affidavits in 
answer to those produced by his opponent. The 
latter might set up new facts, which the former 
could have refuted or explained ; but he has been 
shut out from doing so, and was ^us always at 
the mercy of his opponent, who had ^^ the advan- 
tage of swearing last." The courts, on the other 
band, in the case of conflicting affidavits, have 
always avoided the task of determining on which 
side the truth lay. The only question with them 
was, whether the affidavits, on the face of them, 
afforded an answer to the case set up by the party 
applying for their intervention. If they seemed 
to do so, the courts would not interfere. This 
system consequently has operated as a premium to 
unscrupulousness in the party swearing last, know- 
ing the impossibility of his being contradicted. 
There was one farther inconvenience in the sys- 
tem hitherto in operation ; a party requiring the 
evidence of an unwilling witness had no means of 
obtaining it : no person (with the single excep- 
tion of an officer of the court) could be compelled 
to give evidence b^ affidavit as he might be to give 
it orally in court. 

The system, however, has by a few of the pro- 
visions of the new statute been completely altered. 

Upon motions founded upon affidavits either 
party may now, with the leave of the court or 
a judge, make affidavits in answer to the affidavits 
of the opposite party, upon any new matter arising 
out of such affidavits (s. 45). Neither party can 



Ivi INTEODUCTION. 

Affidavits, now be sure of " the advantage of /swearing 
last." 

Examinati(m An Unwilling witness can no longer withhold 
t^wSlnm!^ his testimony : for any party requiring the affi- 
davit of a person Avho refuses to make an affi- 
davit, may apply by summons for an order to 
such person to appear and be examined before a 
judge or master, as to the matters concerning 
which he has refused to make an affidavit (s. 48) ; 
and the judge may, if he think fit, make such 
order for the attendance of such person for ex- 
amination, and for the production of any writings 
or documents^ (s. 48). The examination is to be 
conducted, and the depositions taken down and 
returned, in the mode now used on vwd voce ex- 
aminations of witnesses (s. 49). 

It has frequently happened that the interven- 
tion of the court has been refused, because, in the 
opinion of the court at the time, no sufficient 
ground was shown for its interference. This has 
involved a fresh application on amended affidavits, 
but often at great cost and delay. In some cases 
any such delay or expense may now be avoided ; 
for upon the hearing of any motion or summons, 
the court or the judge, at their or his discre- 
tion, and upon such terms as they or he think 
reasonable, may, from time to time, order such 
documents to be produced, and such wit- 
nesses to appear, and be examined vivd voce, 
either before the court or judge, or before the 
master, as they or he think fit; and upon hearing 
such evidence, or reading the report of such 
master, the court or the judge may make such 
rule or order as may be just (s. 46). 

The court or the judge may, by such rule or 
order, or any subsequent rule or order, command 
the attendance of the witnesses named therein, for 
the purpose of being examined, or the produc- 
tion of any writings or other documents (s. 47). 



INTBODUCTION. Ivii 

The court, or the judge, or the master, may ad- ^ixamina- 
joum the examination from time to time as occa- ^^^SUg 
sion may require ; and the proceedings upon it ^^^^ess. 
are to be conducted, and the depositions taken 
down, as nearly as may be, in the mode now in 
use with respect to the vivd voce examination of 
witnesses upon interrogatories (s. 47). 



D 3 



Ivni INTEODOCTION. 



Chapter IX. — Law op Evidence. 

" The Common Law Procedure Act, 1854," 
has made several important alterations in the rules 
relating to the examination of witnesses, and has 
also afforded new facilities for the admission of 
documentary evidence. I have thought it desira- 
ble to treat of the enactments of the new statute 
which effect these changes separately, because 
those provisions — which are contained in sections 
twenty, twenty-two, twenty-three, twenty-four, 
twenty-five, twenty-six, twenty-seven, twenty- 
eight, and twenty-nine of the Act — it is expressly 
enacted, shall apply and extend to every court of 
civil judicature in England (s. 103). 

The law of evidence has, in several important 
particulars, been materially improved of late 
years. The nature of these alterations I may be 
permitted to revert to shortly. 

Evidence is of two kinds ; oral, or that furnished 
by the testimony of witnesses^ and documentary. To 
the latter species of evidence I shall cnU attention 
afterwards. As regards the testimony of wit- 
nesises, the rules of law have reference, firstly, to 
the admissibility of witnesses ; secondly, to the 
manner of their examination. 

It is obvious that any witness who can throw 
lis^ht upon a fact in issue should be heard to state 
what lie knows, subject to such observations as 
may arise either as to his means of knowledge or 
to his, disposition to state the truth. And this 
has always been the law of England; but the 



niTBODUCTION. lix 

rule was subject to an important exception, by Law o/ 
which all those persons were excluded as wit- ^^^*^^^ 
nesses who were either infamaus^ or interested in 
the event of the cause. All others were competent 
witnesses; the jury were to judge of their 
credHnUfy, 

In&mous persons were such as might be 
challenged as jurors, propter delictum, and were not 
adnutted to inform that jury, with whom they 
might not associate. Interested witnesses might 
be examined upon the voir dire, if suspected to be 
secretly concerned in the event ; or their interest 
might be proved, in order to disqualify them. 
The law thus carefully excluded not only the 
parties to the cause, but any one who had the 
most minute interest in the result; for every 
person so circumstanced, however insignificant 
his interest, was presumed incapable of resisting 
the temptation to perjury; as every judge aiid 
juryman was to be presumed incapable of dis- 
cerning perjury committed under circumstances 
(according to the former presumption) especially 
calculated to excite suspicion. The first inroad 
on this exclusion of evidence was made by the 
Stat. 3 & 4 Will. IV., c. 42, s. 26, which enacted 
that " in order to render the rejection of wit- 
'^ nesses on the ground of interest less frequent, 
'* if any witness should be objected to as incom- 
" petent, on the ground that the verdict or 
^^ judgment in the action would be admissible in 
" evidence for or against him, he should never- 
^' theless be examined ; but in that case the 
" verdict or judgment should not be admissible 
** for or against him, or any one claiming under 
" him." 

A greater improvement was effected by the stat. 
6 & 7 Vict. c. 85, which removed incompetency on 
the ground of interest in all persons except the 
parties to any suit, action, or proceeding named 



Ix INTBODUCTION. 

Lawqf on the record, or any lessor of the plaintiiT in 
js vidence. ejectment, or tenant of the premises sought to be 
recovered in that action, or the landlord or other 
person in whose right any defendant in replevin 
made cognizance, or any person in whose im- 
mediate and individual behalf any action was 
brought or defended, or the husband or wife of 
such persons. The advantages found to flow 
from this alteration in the law led to the statute 
14 & 15 Vict.,c. 99, by the first section of which 
the proviso in the statute 6 & 7 Vict., c. 85, was 
repealed. The second section enacts, that in any 
court of justice, the parties and the persons in 
whose behalf any action, suit, or other proceeding 
may be brought or defended, shall, except as 
therein excepted, be competent and compellable 
to give evidence on behalf of either or any of the 
parties to the suit. The third section of the 
statute provides that it shall not render any 
person charged with an offence competent or 
compellable to give evidence against himself, 
nor shall it render any person compellable to 
answer any question tending to criminate him- 
self, nor shall it in any criminal proceeding 
render any husband competent or compellable to 
e:ive evidence for or against his wife, or any wife 
competent or compellable to give evidence for or 
against her husband. The fourth section of the 
statute further provides that it shall not apply to 
any proceeding instituted in consequence of 
adultery, or to any action for breach of promise 
of marriage. It was decided, soon after it had 
become law, that the second section of the statute 
did not render a wife admissible as a witness for 
or against her husband, and accordingly the statute 
16 & 17 Vict., c. 83, was passed, which enacts that 
the husbands and wives of the parties to any suit, or 
of the persons on whose behalf any such proceeding 
was brought or defended, should thereafter be com- 
petent and compellable to give evidence on behalf 



t^um 



INTRODUCTION. Ixi 

of either party or any of the parties. Neither Law of 
husband or wife is compellable, however, to dis- -^^'j^^^ 
close any communication during marriage; and 
neither party is a competent witness in a criminal 
proceeding, or in any proceeding instituted in 
consequence of adultery. By these several 
statutes, all rules tending to the exclusion of 
evidence have been abrogated, except in the cases 
I have specified. 

The second branch of the law of evidence, I '^SlJS'^J?^ 
have s^aicl, relates to the examination of witnesses, oath in 
and its fundamental principle is, that the value of ^^***«***- 
all testimony rests on the sanction of religion. 
Hence, no evidence can be received otherwise 
than upon oath ; except in the case of certain 
religions sects, who are allowed to make a solemn 
afiiriiiation. But the religious sanction is, as to 
them, considered equally indispensable, so that 
the witness is always liable to be asked whether 
he believes in a future state of reward and punish- 
ment, and in the event of his answering in the 
negative, he is excluded from giving evidence. 

The exception I have just mentioned has ^ 
hitherto been to Quakers, Moravians, and Sepa- 
ratists ; but it has often happened that an indi- 
vidual, not belonging to either of these denomi- 
nations, from conscientious motives has refused 
to be sworn. The consequence has been, not 
only the los^s of his evidence to the party calling 
the witness, but the exposure of the latter to a 
committal for conteinpt. Individuals have been 
committed for refusing to be sworn, though the 
only result was that in such cases the witness 
sufliered for conscience' sake ; while justice may 
have been defeated by the want of his testimony. 
There could be no reason why the same regard 
which is had to the scruples of a body of persons 
calling themselves Quakers, Moravians, or Sepa- 
ratists, should not be extended to those of an 



Ixii 



INTBODUCTION. 



Law of 
Bvidmee, 



individual ; and it was thought that it might be 
left to a judge to ascertain whether an objection 
professed by a witness in such circumstances was 
sincere or not. Accordingly, if any person called 
as a witness now refuses to be sworn from alleged 
conscientious motives, the judge may, upon being 
satisfied of the sincerity of the objection, permit 
the witness, instead of being sworn, to make a 
solemn affirmation or declaration ; which, it is 
enacted, shall be of the same force and effect as 
if the witness had taken an oath in the usual 
form (s. 20). 

Ffowfar a ^^ Occasionally happens that a witness, called 
party may under a belief that he will prove a certain fact, 
ownwUnw. tums round upon the party calling him, and 
proves directly the reverse. The party calling 
the witness is not precluded from proving by 
other testimony what the witness has negatived ; 
but ought he to be allowed to discredit his own 
witness, either by impeaching his character, or 
by showing that he has previously made state- 
ments at variance with the evidence given by 
him? On this point the decbions of the court 
have been conflicting. 

" For the admissibility of the proposed evi- 
'^ dence, it is said that this course is necessary as 
^' a security against the contrivance of an artful 
*' witness, who otherwise might recommend him- 
" self to a party by the promise of favourable evi- 
" dence (being really in the interest of the oppo- 
" site party), and afterwards by hostile evidence 
'' ruin his cause ; and that the power of proving 
^* contradictory statements ought to be the same, 
" whether the witness is called by the one party 
" or the other : that such a power is necessary 
*' for the purpose of placing the witness fairly 
" and completely before the court, and for eii- 
" abling the jury to ascertain how far he de- 
^' serves to be believed : that the ends of justice 



INTBODUCnON. Ixiii 

^^ are best attained by allowing the fullest power Law qf 
'* for scTutiuizing and correcting evidence, and -swdeno. 
" that the exclusion of the proof of contrary 
'^ statements might be attended with the worst 
^^ consequences. 

^^ The chief objection to the proposed evidence 
" appears to be, that a party, after calling a 
" witness as a witness of credit, ought nut to be 
** allowed to discredit him. The objection pro- 
'' ceeds upon the supposition that the party first 
^ acts on one principle, and afterwards, being dis- 
^^ appointed by the witness, turns round and acts 
^^ upon another, thus imputing to the party some- 
" thing of double dealing or dishonest practice. 
^' But it is evident that thb does not apply to the 
" case where a party, having given credit to a 
" witness, is deceived by him, and first discovers 
" the deceit at the trial of the cause. To reject 
" the proposed evidence in such a case, and re- 
'^ press the truth, would be to allow the witness 
'* to deceive both jury and party, and might work 
" serious injustice." — {Second Iteport, p. 16). 

The argument in favour of the admissibility ot 
the proposed evidence is powerfully put by Lord 
Denman in his judgment in the case of Wright 
V. Beckett. — " If the witness professing to be 
" mine," says his lordship, " has been bribed by 
" my adversary to deceive me, — if, having taught 
" me to expect the truth from him, he is induced 
" by malice or corruption to turn round upon me 
" with a newly-invented falsehood, which defeats 
" my just right, and throws discredit on all my 
" other witnesses, — must 1 be prevented from 
" showing the jury facts like these? Suppose 
^ that in some dispute happening in the street a 
" bystander declares his name to one of the con- 
'^ tending parties, and his readiness to prove his 
'^ conduct blameless ; that he attends the solicitor, 
'^ and gives in his deposition to the same effect, 



Ixiv INTaODUCTION. 

iMw of ^< but, when sworn in open court, takes part with 
EtMen^ " the adversary. The question then is, whether 
" he is to be believed, or the other witnesses 
" called by the same party. Some one in court 
'^ happens to know him, and whispers to the 
** attorney, ' He has deceived you in every way ; 
" * he has given you a false name ; he is the 
" * adversary's brother and partner : moreover, he 
" * has been for years notoriously infamous !' Or, 
" suppose such a trial for misdemeanour as some 
*' that have lately revolted the public mind ; and 
" that some stranger, after voluntarily offering 
'^ his testimony to a calumniated man, should 
" unexpectedly side with his false accuser. If 
" the rule against discrediting your own witness 
" must be strictly construed, these deceptions 
" cannot be exposed. You will be told that you 
" have called him ; you must take him for better 
" and for worse, and must be bound by all his 
" statejiicnts. Or, if you are permitted, by 
" reason of your late discovery of these facts, to 
" prove them for your own necessary protection, 
" this must be, because the rule cannot apply to 
" a case where such facts are brought to your 
^* knowledge after you have placed him in the 
" witness-box. The rule, therefore, is limited by 
** that condition ; and you shall be at liberty to 
" discredit yorfr witpess by such evidence, because 
" you have been deceived and surprised. Can 
" any reason then be assigned, why, when equally 
" deceived by his denying to-day what he asserted 
*' yesterday, you should be excluded from showing 
^' the contradiction into which, from whatever 
" motive, he has fallen ? It is clear that, in 
" civil cases, the exclusion might produce great 
'^ injustice, and in criminal cases improper acquit- 
" tals and fraudulent convictions.*' 

The Commissioners were of opinion, with Lord 
Denman, that a party should be permitted not 



INTRODUCTION. Ixv 

only to contradict the testimony of his own wit- ^^^^^ 

ness by other evidence, but also to prove that the 1 

witness himself had made opposite statements. 
The Legislature has acted on this opinion. While, 
then, a party producing a witness is not to be 
allowed to impeach his credit by general evidence 
of bad character, he may, if the witness in the 
opinion of the judge proves adverse, contradict 
him by other evidence, or, by leave of the judge^ 
pj'ove that he has made at other times a statement 
inconsistent with his present testimony. But 
before such last-mentioned proof can be given, 
the circumstances of the statement, sufficient to 
desig>nate the particular occasion, must be men- 
tioned to the witness, and he must be asked 
whether or not he has made such statement 
(s. 22). 

In cross-examination, it is frequently material, Proof of am- 
with a view of impeaching the credit of an ^j^g of 
adverse witness, to show that he has previously adyerm 
made statements different from those to which he "^«**"- 
has deposed in court. If these statements were 
verbal, and the witness, having been cross- 
examined on them, so as to give him an opportu- 
nity of explanation, denies having made them, 
evidence may be adduced to prove the statements 
as to which he has been cross-examined. 

The rule of law is thus stated by Mr. Baron ^ 
Parke, in Crowley v. Page, 7 C. & P. 791 : 
" Evidence of statements by witnesses on other 
occasions relevant to the matter at issue, and 
inconsistent with the testimony given by 
*^ them on the trial, is always admissible in 
" order to impeach the value of that testimony ; 
" but it is only such statements as are relevant that 
'^ are admissible, and, in order to lay a founda- 
" tion for the admission of such contradictory 
'' statements, and to enable the witness to explain 






Ixvi INTROBDCTION. 

Law of << them, and, as I conceive, for that purpose only, 
"^'''^^f]^ " the witness may be asked whether he ever said 
^' what is suggested to him, with the name of the 
" person to whom or in whose presence he is sup- 
'^ posed to have said it, br some other circum- 
^^ stance sufficient to designate the particular occa- 
^' sion. If the witness, on the cross-examination, 
^^ admits the conversation imputed to him, there 
'* is no necessity for giving further evidence of it ; 
'^ but if he says he does not recoUect, that is not an 
^^ admission, and you may give evidence on the 
^* other side to prove that the vt^itness did say 
'^ what is imputed, always supposing the state- 
^^ ment to be relevant to the matter at issue. 
*' This has always been my practice. If the rule 
** were not so, you , could never contradict a 
" witness who said he could not remember." 

A doubt has arisen on the law as laid down 
by Mr. Baron Parke, in consequence of Lord 
Chief Justice Tindal having, in one case, said he 
had never heard such evidence admitted in con- 
tradiction, except where the witness had expresshf 
denied the statement ; imd of Lord Abinger having, 
on another occasion, expressed a similar opinion. 
This conflict of authority has been set at rest, and 
Mr. Baron Parke's ruling, as ^' the most sound and 
fittest to be followed," has been expressly enacted. 

Prc^ofcon' If a witness, upon cross-examination as to a 
%aiea^<f former statement by him, inconsistent with his 
^'Slenes Present testimony, does not distinctly admit that 
he has made such statement, proof may be given 
that he did in fact make it. But before such 
proof can be given, the circumstances of the state- 
ment, sufficient to designate the particular occa- 
sion, must be mentioned to him, and he must be 
asked whether or not he has made such statement 
(s. 23). 

When the contradictory statement alleged to 



. INTBODUCTION. Ixvii 

have been made by the witness is in wrUmg, the Law <f 
rule, as laid down in the Queen's case, has hitherto -^^^J*"^ 
been, that the cross-examining' counisel must pro- 
duce the document as his evidence, and have it 
read, in order to found upon it any questions to the 
witness. That this rule might not be evaded, it 
was further laid down that the witness could not 
be asked whether he had ever made r^^tresentations 
of the nature suggested to him, without counsel 
informing him whether the question referred to 
representations in writing or in words alone. 
Thus, a counsel defending a prisoner has not been 
permitted to ask a witness for the prosecution, 
whether he had not made a different statement 
before the magistrate, without first reading over 
and putting in his deposition. The effect of the 
rule in practice has been to exclude the former 
statement ; and its soundness has been much ques- 
tioned by judges and by authors on the Law of 
Evidence. Lord Brougham has observed, ^^ If I 
^* wish to put a person's memory to the test, I am 
*^ not allowed to examine him as to the contents of 
^^ a letter or other paper which he has written. I 
'' must put the document into his hands before I 
^^ ask him any questions upon it ; though, by so 
'^ doing, he at once becomes acquainted with its 
^ contents, and so defeats the object of my 
" inquiry. Neither am I, in like manner, allowed 
** to apply the test to his veracity ; and yet, how 
'^ can a better means be found of sifting a person s 
" credit, supposing his memory to be good, than 
^ examining him to the contents of a letter 
" written by him, and which he believes to be 
" lost ? " 

The chief reason assigned for the rule was, that ^JJJJ^*^" 
the adoption of a contrary course would enable premous 
the cross-examining counsel to put the court in Jjjj^j^** *** 
possession of a part only of the contents of the 
writing, though a knowledge of the whole might 



Ixviii INTRODUCTION. 

'-aw^ be essential. But the obvious answer to this 

objection to an alteration in the rule is, that the 

witness, on re-examination, may be questioned as 
to any other parts of the writing which may tend 
to qualify, contradict, or explain the passages 
referred to in cross-examination. The rule has 
accordingly been altered ; and a witness may now 
be cross-examined as to previous statements made 
by him in writing, or reduced into writing, rela- 
tive to the subject-matter of the cause, without 
such writing being shown to him. But if it is 
intended to contradict the witness by the writing, 
his attention must, before such contradictory 
proof can be given, be called to those parts of the 
writing which are to be used for the purpose of 
contradicting him (s. 24). 

The judge may also, at any time during the 
trial, require the production of the writing for 
his inspection, and make such use of it for the 
purposes of the trial as he thinks fit (s. 24), 
Any abuse of the facility for cross-examination 
thus given will, it is anticipated, be prevented by 
the judge being enabled to call for and deal with 
the writing as he thinks fit. 

Proof of pr^ An important test of the veracity of a witness 
HoTJa^^ is to be found in his general character. If he 
ivUnm. has been guilty of offences which imply want of 
probity, and especially absence of veracity, such 
as perjury, forgery, or the like, such facts ought 
evidently to be considered in forming an estimate 
of the value of his evidence, particularly if it be 
in conflict with the testimony of another witness 
of unquestioned integrity. But because a person 
is in possession of a fact which is important to 
another in a legal proceeding, to which he indi- 
vidually is no party, should he, by becoming a 
witness to prove that fact, be made liable to be 
interrogated as to some delinquency of which no 



INTRODUCTION* Ixix 

proof may exist, or as to some offence for which Lato of 
he has already paid the penalty ? The obvious ^»**|*^ 
hardship of subjecting a witness to such an ex- 
amination becomes more striking if the individual, 
having been really guilty of any offence, has since 
recovered his character and the good opinion of 
his neighbours. But if the witness deny the 
imputation ? Should the party cross-examining 
be at liberty to prove, by other testimony, the 
offence or the conviction which he alleges against 
the witness? Such a course would involve 
grievous injustice to the witness, for not only 
would he have no notice of the accusation 
about to be made, nor could he be expected to 
come prepared to defend every transaction of his 
life. 

The law of England accordingly protects a 
witness in refusing an answer to any question 
where the answer may tend to subject him to a 
criminal prosecution, a penalty, or a forfeiture. 

With regard to questions which do not tend to 
expose him to prosecution, but which tend to 
degrade his character by imputing to him mis- 
conduct not amounting to legal criminality, or 
the having been convicted of a crime, the law in 
like manner protects him in refu^^ing an answer, 
unless the misconduct imputed has reference to 
the cause itself. The question may be put : the 
witness is not bound to answer. If he does 
answer and denies the imputation, his denial has 
hitherto been conclusive. It could not be con- 
troverted. The rule has, however, been modi- 
fied. A witness may be questioned, as he has 
hitherto been, as to whether he has been convicted 
of any felony or misdemeanor ; but if, upon being 
so questioned, he either denies the fact or refuses 
to answer, the opposite party may prove such 
conviction (s. 25). The denial of the witness or 
his refusal to answer is no longer conclusive. On 



IXX INTRODUCTION. 

Law of the contrary, it exposes his whole evidence to the 
^^^ *^^'*^' imputation of being false if a conviction be 
proved. On the other hand, if the fact of the 
conviction be admitted by the witness, the ex- 
amination can go no further, and the admission 
will afford ground for a presumption, that in other 
matters the witness has spoken the truth, since 
he has not hesitated to confess an error in his 
previous life. 

Attesting The law as to documentary evidence has also 

tntness need , . ^ i . j j • i 

not be cdOed. been in some respects altered and improved. 
Many instruments must be attested by one or 
more witnesses. Thus a will, to be valid, must 
be attested by two witnesses ; an agreement be- 
tween a master of a ship and a merchant-seaman 
by one ; a warrant of attorney or cognovit must 
be attested by an attorney. Instruments are 
often ^attested in a particular way, from their 
being executed under powers where the parties 
creating such powers, or rather their conveyancers, 
from inveterate adherence to forms, have thought 
proper to require such attestation. It is also 
usual in the case of instruments under seal, and 
by no means uncommon in the case of ordinary 
written agreements, to have documents subscribed 
by one or more attesting witnesses. 

It has hitherto been the rule that before an at- 
tested document could be received in evidence, the 
attesting witness should be called to prove the 
execution. So stringent was this rule that in a 
recent action of ejectment by a mortgagee, in 
which the execution ofthe mortgage was admitted 
by the defendant in the witness-box, the plaintiff 
was notwithstanding nonsuited by the judge, and 
by the court held to have been so legally. 
** The principle on which the necessity for pro- 
^ ducing the attesting witn^ rests, is, that the 
^' witness is supposed to be conversant with all 



INTBOJDUCTION. Ixxi 

" the circumstances under which the deed was 1^4^ 
" executed. But it is notorious that, in practice, ^^"^^^^ 
'^ the attesting witness, in the majority of in- 
** stances, knows nothing of the transaction ; the 
'' instrument having been prepared, a clerk, a 
'' servant, or a neighbour is caJled in to attest it. 
^^ Added to which, as parol testimony is not 
^' admitted to contradict or vary the terms of a 
^' written instrument, the occasions are few indeed 
" where the evidence of the attesting witness goes 
'^ further than to prove the execution of the writ- 
" ing." — {Second Report, p. 23.) The necessity of 
callipg the witness where the execution of the 
instrument was not in dispute, and where there 
were no concomitant circumstances to be inquired 
into, has oflen been attended with difficulty and 
expense, and sometimes, as in the case above 
referred to, led to the defeat of justice. " Cases 
** have occurred where, in tracing a title, nume- 
" rous witnesses from distant parts have been 
** rendered necessary to prove the formal execu- 
'^ tion of deeds, though their execution was not 
really in dispute, and the handwriting to all 
might have been proved by a single witness, 
'^ and doubtless would have been admitted, but 
" for the difficulty which it was thought would, 
by the existing rule, be thrown in the way of 
the party alleging title." — {Second Report^ 
p. 23.) It has sometimes also happened at a trial, 
that it became necessary to give in evidence a 
document, which it was not supposed would be 
required ^ or a document has been produced by a 
witness which unexpectedly turned out to be 
attested. The attesting witness not being at 
hand, although the signature of the party might 
be easily proved, or the witness producing the 
instrument might have heard him admit the exe- 
cution, the document could not be received, and 
the party requiring it accordingly lost his cause. 

When the genuineness of a document is not in 









Ixxii INTRODUCTIOX. 

LoModf dispute, the parties ought not to be limited to any 

particular witness to prove the execution. When 

the jrenuineness is in dispute, the party producing 
it will be sure to call the attesting witness, as his 
absence would tend to throw the greatest discredit 
on the instrument. It is, therefore, no longer 
necessary to prove by the attesting witness any 
instrument to the validity of whith attestation is 
not requisite. Such instrument may be proved 
by admission^ or otherwise, as if there had been 
no attesting witna<!s thereto (s. 26). 

compaxiifm, In giving documentary evidence, the genuine- 
%in&iing, ness of handwriting frequently comes in dispute. 
Hitherto handwriting might have been proved by a 
witness who had acquired a knowledge of it, by 
having seen the party write even in a single in- 
stance ; or by one who had never seen the party 
write at all, but who, by correspondence which 
had been acted upon, had acquired a knowledge of 
his writing. The law, however, did not allow a 
witness to institute a comparison between the hand- 
writing in dispute and documents the genuineness 
of which was not disputed, and it prevented even 
the jury from doing so, unless such documents 
were in evidence in the cause. 

This rule of Law, and a doubt which has arisen as 
to the extent to which it ought to be carried, are 
well illustrated in two cases referred to by the 
Commissioners in their Report. 

In Doed. Mudd v. Suckermore 5, Ad. and El. 
703, which was an action of ejectment, a will was 
produced for the defendant ; and on one day of 
the trial an attesting witness was called, wIjo 
swore that the attestation was his. On cross- 
examination, eighteen other signatures were 
shown the witness (none of which were in evi- 
dence), and he acknowledged them to be his. 
On a subsequent day a witness was tendered for 
the plaintiff to prove the attestation not to be 



iNTBODUCTioK. Ixxiii 

senuine. This witness was an inspector at the Law qf 

Hank of England. It was his business to compare 1 

the signatures to powers of attorney with the 
former signatures of the parties, to ascertain their 
genuineness ; but he had no knowledge of the 
handwriting of the supposed attesting witness, 
except from having, previously to the trial, and 
again since he had been called as a witness, ex- 
amined the signatures admitted by him to be his. 
His evidence was rejected ; and on motion for a 
new trial, on the ground of the improper rejection 
of evidence, the question was, whether the witness, 
who had, by seeing the signatures of the writings 
admitted to be genuine, acquired, as he affirmed, 
a knowledge of the handwriting, might be asked 
whether he believed the signature of the attesiing 
witness to be the handwriting of the person who 
wrote the other signatures. Two judges were of 
opinion that the evidence ought to have been re- 
ceived ; the others that it ought not. It would 
seem that the evidence was properly rejected. 
In the Fitzwalter Peerage Case, 10 CI. and Fin. 
193, it was necessary to show that a pedigree, 
purporting to have been made ninety years before, 
by an ancestor of the claimant, was, in point of 
fact, written by him. In order to do so an inspec- 
tor of franks and official correspondence was called, 
who stated that he had examined the signatures to 
other documents admitted to have been executed 
by the ancestor, that they were written in a re- 
markable character, and that his mind was so im- 
pressed with that character as to enable him, 
without immediate comparison, to say whether 
any other document was or was not in the hand- 
writing of the same person. This evidence was 
rejected by the Committee. The family solicitor 
was then called. He stated that he had acquired 
a knowledge of the ancestor's handwriting from 
having had occasion, at different times, and in the 
course of business, to examine many instruments 

s 



Evidence. 



Ixxiv IHTRODUCTION. 

tS^^L purporting to have been written or signed by him, 

and which instruments came to the claimant of 

the peerage, with property formerly belonging to 

hat ancestor. This witness was held competent 

to prove the ancestor's handwriting. 

There has been a difference of opinion on 
another point, viz., whether writings not admis- 
sible as evidence in the cause, though purporting 
to be written by the party whose handwriting is 
disputed, may be put into the witness's hand, to 
be used for testing his knowledge of that hand- 
writing. In Griffits v, Ivery,* the issue being 
whether the acceptance on a bill of exchange was 
signed by the defendant, witnesses acquainted with 
his writing being called to prove the n^^tive, it 
was proposed, in cross-examination, to lay before 
each witness a paper purporting to bear the de- 
fendant's signature, and to inquire of each his 
opinion whether this was the defendant's signa- 
ture. This was proposed for the purpose of testing 
their knowledge of the defendant's handwriting. 
The evidence was rejected, and the Court of 
Queen's Bench decided that, as the proposed paper 
was no part of the proofs in the cause, the inquiry 
was not allowable. In the subsequent case of 
Young V. Honner,t an action against the defendant 
as acceptor of a bill, a witness called on his behalf 
stated that he believed the signature not to be the 
handwriting of the defendant — giving, as his 
reason, that the defendant always signed his name 
with certain initials, the signature to the bill being 
at full length. la cross-examination a paper, not 
in any way relevant to the issue, being put into his 
hand, he stated that he believed it to bear the 
genuine signature of the defendant. It was then 
proposed to ask him whether the signature was 
not in the same form as that upon the bill, namely, 

* 11 Ad. and El., 322. f 2 M. and R. 536. 



INTRODUCTION. IxXV 

at foil length. Upon this being objected io^Lawof 

Baron Alderson, after consulting the Court oi^'^ "_ 

Exchequer, stated that they were unanimously of 
opinion that the cross-examination was regular, 
and that the (Juestion objected to might be put. 
The Court of Exchequer could not concur in the 
decision of the Court of Queen's Bench in Griffics 
V. Ivery, already referred to. 

The reasons for the exclusion of other writings 
as a medium of comparison are fully discussed in 
the Report of the Commissioners, who were of 
opinion, moreover, that it was '^ indefensible in 
^^ principle to allow a witness to institute a com- 
'' parison with the recollection of writings which 
'^ he may have seen long ago, and of which but a 
'^ faint trace may remain on his mind, and yet to 
^ prohibit a fresh comparison with genuine 
^^ writings, more especially when, for the purpose 
" of trying the accuracy of the witness, it is pro- 
" posed to apply the test of requiring his judg- 
'^ ment on writing which is not disputed. Still 
'^ less defensible did it appear to leave the jury to 
^^ act on the judgment of a witness who, after all, 
" can only form that judgment on a comparison 
'^ of the disputed writing with others, and 3^et to 
deny the jury the opportunity of forming their 
own judgment on the same materials.'' — {Second 
Report, p. 26). 

The Commissioners accordingly suggested an 
alteration in the rule of law, and tlieir recom- 
mendation has been adopted. Comparison of a 
disputed writing with any writing proved to the 
satisfaction of the judge to be genuine, may now 
be made by witnesses ; and such writings, and the 
evidence of witnesses respecting the same, may be 
submitted to the court and jury as evidence of the 
genuineness, or otherwise, of the writing in dis- 
pute (s. 27). 

The exclusion of documents as evidence, occa- 

£ 2 



ii 



Ixxvi 



INTRODUCTION, 



Law of 
Evidence, 



sioned by the operation of tlie stamp laws, forms 
the subject of some comment in the Report. 
From confidence in each other, from a belief that 
a document Mrill never be required in court, or 
from ignorance tliat it requires a stamp, parties 
oflen omit to have instruments properly stamped. 
Occasionally too, from inadvertence or accident, 
the stamp affixed is of insufficient amount. The 
document is inadmissible in evidence, though the 
party objecting is equally to blame for the 
omission ; and the result is often the defeat of 
justice. The want of the stamp may (with 
certain exceptions) be cured by payment of a 
penalty, and when it is anticipated that the 
instrument will be produced, the mischief may be 
avoided. But a document is often produced at a 
trial by a third party, and then for the first time 
it is discovered that a stamp is wanting, or that a 
stamp of a different amount and denomination 
ought to have been affixed. It has hitherto been 
too late after the trial itself has begun, to stamp 
the. instrument, and great injustice has been done 
in consequence. ^' No doubt as far as the 

* administration of justice is concerned, it would 
' be highly desirable that a stamp should not be 
^ the condition of the admissibility of an instru- 
' ment ; but so long as the stamp duties form a 
' portion of the public revenue, it would, no 
^ dovbt, be in vain to propose that the absence 
' of the stamp should not be a ground of objec- 
' tion. All that can be done is to endeavour to 
' reconcile the claims of justice with the interests 

* of the revenue." — {Second Report, p. 2(5,) 

stampduty Accordingly, upon the production of any docu- 
^^« t7& ment as evidence at a trial, it is now the duty of 
the officer of the court, whose business it is to read 
such document, to call the attention of the judge 
to any omission or Insufficiency of the stamp ; 
and the document, if unstamped, or not suffi- 



INTRODUCTION. Ixxvii 

ciently stamped, is not to be received in evidence ^^^ <>/ 

until the whole or (as the case may be) the defi- !!l 

ciency of the stamp duty, and the penalty required 
by statute, together with the additional penalty 
of one pound, has been paid (s. 28). 

The officer of the court must give a receipt 
for the amount of the duty or deficiency which 
the judge determines to be payable, and also of 
the penalty, and thereupon the document will be 
admissible in evidence, saving all just exceptions 
on other grounds (s. 29). 

There is a class of documents which cannot 
be stamped after execution, even on payment of a 
penalty. It is thought that these instruments, if 
they could be stamped when the necessity arose, 
would not in general be stamped at all. These 
are not within the number of documents made 
admissible by the above enactment, which, it is 
expressly provided, is not to extend to any docu* 
ment which cannot now be stamped after the 
execution thereof (s. 29). 



Such are the alterations effected by the new 
statute in the law of evidence. They apply, as 
we have seen, to every Court of Civil Judicature 
in England, and cannot be regarded in any other 
light than as great improvements in the law, in 
every way desirable, and likely to conduce to the 
better administration of justice. 



Ixxyiii intboduction. 



Chapter X. — Amendments in the Pro- 

CEDUBE OF the CoUBTS. 

In a previous chapter I have mentioned the altera- 
tions in practice effected by the Common Law 
Procedure Act 18o4, with reference to the nume- 
rous incidental applications that may be made to 
the courts in the course of an action ; and I have 
explained briefly the means provided by the 
statute, for the examination of persons unwilling 
to give their evidence on affidavit. In another 
chapter I have endeavoured to analyse the pro- 
cedure on an appeal, against the decision of the 
court, granting or refusing a new trial or leave to 
enter a verdict or nonsuit. The alterations in the 
law, and the proceedings by which these altera- 
tions are to be carried into eflect, to which I 
have thus directed the attention of the reader, are 
not only important in themselves, but they form 
a substantive part of the recent legislation, and 
constitute, as it were, separate divisions of the 
extended jurisdiction now possessed by the Supe- 
rior Courts. 

The Common Law Procedure Act, 1854, con- 
tains, however, various enactments, which simply 
alter or modify the existing rules of practice, or 
else supply the deficiencies, which experience has 
already pointed out in the recently-remodelled 
procedure of the courts. None of these were of 
sufficient importance to be treated of in separate 



INTRODUCTION. Ixxix 

chapters ; and for that reason I thought it desira- 'V«»o 'Wai. 
ble to reserve all mention of them to the last. 
They constitute the latest amendments in Com- 
mon Law Procedure ; but the effect of the enact- 
ments themselves may be stated very briefly 
indeed. 

- New TriaJt, 

A new trial may be obtained on the ground of 
either the improper admission or the improper 
rejection of evidence ; and when granted in con- 
sequence of a mistake in this respect on the part 
of the judge, the costs of the abortive trial fall 
almost always on the party ultimately unsuccess- 
ful. It is for the judge to admit or reject 
documentary evidence, when its admissibility is 
objected to ; and, as is well known, one of the 
grounds of objection to such evidence most 
frequently stated is, that the document is not, or 
not sufficiently stamped. 

In the event of a document which is tendered 
in evidence being thus objected to, the judge must 
decide on the objection. If he holds that the 
document, not being stamped, requires a stamp, 
or being stamped, that it is insufficiently stamped, 
this ground of objection (which may be stated 
not only by a party in the cause, but ought now 
to be called to the attention of the judge, by the 
officer of the court who reads the document), 
may be immediately removed. One of the most 
important amendments in the Law of Evidence, 
effected by the new statute, is the provision 
permitting documents which require to be stamped, 
but which turn out to be either not stamped or 
insufficiently stamped, to be received in evidence, 
on payment to the associate of the stamp duty 
which the judge considers the document ought to 
bear, and the appropriate penalties. The section 
referred to provides for those cases in which the 



IXXX INTRODUCTION. 

New Trial, judge decides that the document requires a stamp, 
or an additional stamp. 

The judge may, however, hold that the document 
tendered in evidence does not require a stamp at 
all, or if stamped, that it is already sufficiently 
stamped. If he does so, the evidence is at once 
admitted. 

Hitherto if the judge decided erroneously in 
either case, a new trial would be granted, if the 
document had been given in evidence. Where the 
stamp duty and penalties considered necessary 
by the judge are paid at the trial, it would be an 
abuse of the forms of justice to permit a new 
trial. It would be equally an abuse to grant a 
new trial after the judge had, upon consideration 
of any objection made to it, admitted the docu- 
ment ; for, now that machinery for receiving the 
stamp duties on documents at the trial has been 
provided, every party, tendering a document in 
evidence, must be considered ready to pay any 
stamp-<]uty and penalties necessary to secure its 
admissibility. Accordingly no new trial can now 
be granted by reason of the ruling of the judge, 
that the stamp upon any document is sufficient, 
(which must be his ruling if the document be 
stamped at the trial), or that the document does 
not require a stamp (s. 31). 

Costs nf '^^^ ^°^y other provision of the statute, con- 

Ihariivt nccted with the subject of new trial, which need 
'^'*^' be mentioned here, is the enactment, that when a 

new trial is granted on the ground that the verdict 
was against the evidence, the costs of the first 
trial shall abide the event (s. 44). ^^In the 
'^ &llibility of human intelligence a judge may 
^' sometimes take a wrong view on a question of 
^^ fact and by his observations lead the jury 
'^ astray." Accordingly, when a new trial is 
granted for misdirection by the judge, the costs 



INTRODUCTION. Ixxxi 

of the first trial always abide the event of the ''^««' ^'^riai. 
second. Hitherto, however, when a jury com" 
posed of men, equally if not more fallible than 
the judge who guided their decision, took a wrong 
view on a question of fact, and a new trial was 
granted, the payment of the costs of the first trial 
to the party who had been, though in the opinion 
of the court improperly, successful, was a necessary 
preliminary. In the case of either judge or jury 
taking a wrong view, it is clear that injustice is 
done, or supposed to be done, to one of the 
parties, without any fault on his part. He will 
no longer be punished for an error conunitted by 
the jury, any more than he has hitherto been for 
one committed by the judge. 

Since the abolition of the writ of venire facias 
juratores, which commanded the sheriff to summon 
the jurors for the trial, the award of a venire de 
novo is termed an award of a tiial de novo, 

A trial de novo is awarded when, owing to some Trial detww 
irregularity or defect in the proceedings them- 
selves, the proper effect of the first venire (or 
coming tc^ether of the jury) had been frustrated. 
Thus, if a challenge had been wrongly disallowed, 
the jury was incomplete, and the verdict a 
nullity ; — so, if the jury was improperly chosen ; 
— so, if the verdict given was uncertain or am- 
biguous. Accordingly, wh^n the unsuccessful 
party at the trial objects to the verdict on 
technical grounds (rather than on the merits), he 
may apply for and obtain a trial de novo. 

The court may be wrong, however, in awarding 
a trial de novo. An appeal, we have seen, has 
been provided from their decision, giving or 
refusing a new trial, which is awarded on the 
merits of the case (ante, p. xliv.) In the same way, 
but principally to remove a doubt on the subject, 
it is specisdly enacted that upon an award of a 
trial de novo, upon matter appearing on the record, 

E 3 



Ixxxii INTRODUCTION. 

Triaidenow. error may be brought (s. 43). If the Court of 
Exchequer Chamber awards a trial de novo, error 
may alike be brought on their' judgment in the 
House of Lords (s. 43). A judgment affirmed 
in either Court of Error, will be affirmed with 
costs. 

JRevivor, 

TheCommonLaw Procedure Act, 1852(8. 131), 
provided, it will be recollected, a new procedure 
in lieu of the writ of scire facias, for the revival 
of judgments and other proceedings, by and 
against persons not parties to the recoil. The 
Writ of Revivor, as the new process is termed, 
is directed to the party called upon to show cause 
why judgment should not be awarded ; and, after 
reciting the reasons why it becomes necessary, it 
calls upon him to appear, and gives notice that, 
in default of appearance, execution may be issued, 
as in the case of a writ of summons. The pro- 
ceedings after appearance are the same as those 
in an ordinary action. Having provided this 
new procedure, the statute further enacted that 
writs of scire faciaSy in several other cases speci- 
fied, should be proceeded upon in like manner as 
writs of revivor.* 

This assimilation of procedure it seems desirable 
to carry out to every case which permits of it. 
One instance of assimilation by the new statute 
has been noticed already. The proceedings on 
a prerogative writ of mandamus, it will be re- 
collected, are to be, as nearly as may be, the 
same as those in an ordinary action. The second 
instance of assimilation occurs in the case of pro- 
ceedings against executors, upon a judgment of 
assets in futuro ; which are now to be had and 
taken in the manner provided by the Common 
Law Procedure Act, 1852, as to writs of revivor 
(8. 91). 

V - 

" Common Law Procedure Act 1852," s. 132. 



INTBODUCTION. Ixxxiii 

Abatement, 

The proceeding sunder the Common Law Pro- 
cedure Act, 1852, for the revival of judgments 
and other proceedings by and against persons not 
parties to the record, were framed to meet those 
cases in which writs would otherwise abate, by 
the death, marriage, or bankruptcy of one of the 
parties to the action. 

In the law relating to this subject, some 
changes, it will be recollected, were made by that 
statute. 

It was provided, that in the event of the death 
of one or more of several plaintiffs or defend- 
ants, if the cause of action survived, the death 
might be suggested on the record, and the acdon 
proceeded with at the suit of the surviving plain- 
tiff or plaintiffs, against the surviving defendant 
or defendants.* So, in the case of the death of a 
sole plaintiff, a suggestion might be entered by 
the representative, the truth of which, if made 
before the trial, might be tried thereat, — judg- 
ment following in favour of the person making 
the suggestion, as if he had been the oiiginal 
plaintiff.t 

In the case of the death of a sole defendant, a 
suggestion might be made of the death, and that 
a person named in the suggestion was his repre- 
sentative; — and such representative might be 
served with a copy of the suggestion, and of the 
other proceedingsy according to the stage at 
which the pleadings had arrived, on which the suit 
proceeded as an ordinary action against the repre- 
sentative.^ 

These proceedings, it will be observed, afforded 

* " Common Law Procedure Act, 1852/* s. 136. 
t Ibid., s. 138. X Ibid., s. 137. 



Abatement. 



Ixxxiv INTRODUCTION. 

Abatement, to a surviving plain tiff, or to the representative of 
a deceased plaintiff, a short and simple mode of 
continuing the action. They gave to all plain- 
tiffs, an equally simple mode of having the legal 
representative of a defendant who died, put 
exactly in the place of the deceased in the action 
itself. 

But no means were afforded to a surviving 
defendant, or to the representative of a sole 
defendant who had died, of compelling the plain- 
tiff in an action to proceed therein, so as to bring 
the proceedings to a close. This omission has 
now been applied. 

Where an action would (but for the enact- 
ments I have mentioned) have abated by reason 
of the death of either party, the defendant, or the 
person against whom the action may be continued, 
may now apply, by a summons at chambers, to com- 
pel the plaintiff, or the person entitled to proceed 
with the action in the room of the plaintiff, to 
proceed according to the provisions of the Common 
Law Procedure Act, 1852, (s. 92). If the judge 
at chambers makes an order on the plaintiff, or 
person entitled to proceed with the action, that he 
do proceed therein, he must do so within such 
time as the judge orders. In default of his 
proceeding in terms of the order, the defendant, 
or person against whom the action may be con- 
tinued, will be entitled to enter a suggestion of 
the default, and of the representative character 
of the person by or against whom the action may 
be proceeded with, and to have judgment for the 
costs of the action and suggestion against the 
plaintiff, or against the person entitled to proceed 
in his room, as the case may be (s. 93). 

This summary proceeding to compel the con- 
tinuance or abandonment of an action, in case of 
the death of one of several plainti£& or defendants, 
' or of a sole defendant, may be adopted in the 



. INTKODUCTION. IxXXV 

other cases of abatement provided for by the ^^ettMnt. 
Common Law Procedure Act, 1852. 

Jajectment, 

The Common Law Procedure Act, 1852, abo- 
lished, it will be recollected, the ancient action of 
trespass and ejectment, in which John Doe com- 
plained of the proceedings of Richard Roe. It 
supplied in its place a new and rational mode of 
trying the title to real estate. It provided, how- 
ever, that the effect of a judgment in the new 
action should be the same as the effect of a judg- 
ment in Doe v. Roe.* If John Doe was non- 
suited, or there was a verdict for the defendant, 
the effect was, either that Doe did not follow out 
his then action, or that the defendant had not 
been guilty of the particular trespass alleged to 
have been committed on Doe. In consequence, 
Doe might immediately bring another action of 
trespass and ejectment, complaining apparently of 
another assault and ejectment, but, in reality, to 
try the very same title. The courts, however, 
interfered, and it was a matter of course to stay 
the proceedings in tfie second action, until the 
costs, incurred by the real defendant in the former 
ejectment, had been paid. As the effect of a 
judgment, in the new action of ejectment, is the 
same as that in the former action, a second action 
may now be brought by the claimant in a writ of 
ejectment, immediately after a verdict for the 
defendant in an action, in which the same title 
has. been tried and the same claimant unsuc- 
cessful. 

In some cases, the courts would interfere to stay 
proceedings in the new action, until security for 
the costs of it was given by the unsuccessful 
claimant. They are enabled to do so now by 

* Common Law Procedure Act» 1852, s. 207. 



Ixxxvi INTBODUCTION. . 

^f ^n^ent. express < enactment. For if any person brings au 
- action of ejectment, after a prior action of eject- 

ment for the same premises has been unsuccess- 
fully brought by such person against the same 
defendant, the court or a judge may, on the 
application of the defendant, at any time after he 
has appeared to the writ, order the plaintiff to 
give the defendant security for the payment of 
the defendant's costs, and that all further pro- 
ceedings in the cause be stayed until such security 
be given (s. 93). 

Execution. 

There is one other amendment in the practice 
of the superior courts to which attention must be 
called. Writs of execution issued since the 
former Procedure Act became law have only 
been in force for a year, but are capable of being 
kept in force by being renewed from time to 
time. A somewhat similar enactment has been 
made with reference to writs of execution- issued 
previously to the Common Law Procedure Act, 
1852, coming into operation. Such writs, if still 
unexecuted, will not now remain in force for 
more than six calendar months after the 24th 
October, one thousand eight hundred and fifty- 
four, unless they are renewed in the same manner 
as writs may be renewed under the Common Law 
Procedure Act, 1852, s. 124. 

There are various formal clauses, such as s. 
89, providing that any person giving false evi- 
dence upon any examination, or in any affidavit, 
shall be liable to the penalties of wilful and 
corrupt perjury: — s. 90, enacting that writs of 
execution to fix bail may now be tested and be 
made returnable in vacation : — s. 96, authorizing 
amendments to be made in terms analogous to 
those of s. 222 of the former Procedure Act; 
and ss. 97 and 98, providing that rules and 



INTKODUCTION. IxXXVii 

orders, for the effectual execution of the Act and ^^'^' 
of the intention and object thereof may be made, 
and new and altered writs, and forms of proceed- 
ings issued by the judges, which need only be 
mentioned. 

The Legislature has given effect to almost 
all the suggestions made by the Common Law 
Commissioners in their Second Report. These 
learned persons expressed a conviction — we may 
be permitted to express a hope — that these altera- 
tions '* will not only be the means of saving much 
*' vexation, expense, and delay in litigated cases, 
'^ but will also conduce generally to a better 
'' observance of justice, by adding to the speed 
'^ and facility with which it can be thoroughly 
'* enforced." 



THE 

COMMON LAW PROCEDURE ACT, 

1854. 



17 & 18 Vict., cap. 125. 



An Act for the further amendment of the process, 
practice^ and mode of pleading in and enlarging the 
j'ltrisdiction of the Superior (hurts of Common Law at 
Westminster^ and of the Superior Courts of Commxm 
Jjaw of the counties palatine of Lancaster and Dur- 
ham. [12th August J 1864.] 

Be it enacted by the Queen's most Excellent Majesty, 
by and with the advice and consent of the Lords 
Spiritual and Temporal, and Commons, in this present 
Parliament assembled, and by the authority of the 
same, as follows : — 



[TRIAL BY THE COURT OR A JUDGE.] 

1. The parties to any cause may, by consent in writ- judge may, 
ing, signed by them, or their attorneys, as the case *>y co^^wnt, 
may be, leave the decision of any issue of fact to the SPfiSf'^^"* 
court, provided that the court, upon a rule to show 
cause, or a judge on summons shsdl, in their or his 
discretion, think fit to allow such trial ; or provided 
the ludges of the superior courts of law at Westminster 
shall, in pursuance of the power herein-after given to 
them, make any general rule or order dispensing with 
such allowance, either in all cases or in any particular 
class or classes of cases to be defined in such rule or 



2 THE COMMON LAW FROCEDURE ACT, 1854. 

order ; and such issue of fact may thereupon be tried 
and determined, and damages assessed where necessary, 
in open court, either in term or vacation, by any judge 
who might otherwise have presided at the trial thereof 
by jury, either with or without the assistance of any other 
judge or judges of the same court, or included in the 
same commission at the assizes; and the verdict of 
such judge or judges shall be of the same effect as the 
verdict of a jury, save that it shall not be questioned 
upon the ground of being against the weight of evi- 
dence ; and the proceedings upon and after such trial, 
as to the power of the court or judge, the evidence, 
and otherwise, shall be the same as in the case of trial 
by jury. 

In the introduction the class of cases is pointed out 
which will probably he left to the determination of the 
judge or the court (see pp. xxviii. xxix.) This is one 
of many enactments in the statute, which are to be 
carried out by rules of court. Until these rules are framed, 
it would be useless to attempt to define what the proce- 
dure under these sections will be. 

The provisions of s, 18, post, do not extend to trials 
under this section. 

It will be observed that the verdict in a cause tried 
by a judge cannot be questioned on the ground of its 
being against the weight of evidence. The verdict will, 
on questions of fitct, be conclusive. If questions of law 
arise on the trial, as they frequently do, some difficulty 
may be felt in keeping the judge's ruling on these alto- 

S ether distinct from his verdict on matters of fact. A 
emurrer to evidence (for the proceedings in which see 
Gibson v. Hunter 2 H. Bl. 209), the effect of which is to 
have the whole facts proved at the trial, submitted to 
the court m banco, whose judgment applying that law 
may be reviewed in error, would not seem to be com- 
petent, though this is not altogether free from doubt 

[TRIAL OF CAUSES IN WESTMINSTER AND 

LONDON.] 

Two judges 2. It shall be lawful for anyone of the judges of 
™*y ^*** any of the superior courts at Weatmmster, at the re- 
for trial of quest of the Lord Chief Justice or Lord Chief Baron, 
causes pend- to try the causes entered for trial at Nisi Prius in 
S^ecourt. Westmimter and London in either of the courts, on 
the same days on which the said Lord Chief Justice 



TfilAL. O 

or Lord Chief Baron, or any other judge of the same 
court, shall be sitting to try causes at those places re- 
spectively, or at either of them, so that the trial of 
two causes may be proceeded with at the same time ; 
and all jurors, witnesses, and other persons who may 
have been summoned or required to attend at or for 
the trial of any cause before the said Lord Chief 
Justice or Lord Chief Baron, as the case may be, 
shall give their attendance at and for the trial thereof 
before such other judge as may be sitting to try the 
same by virtue of this Act ; and 'it shall be lawful for 
the associates and other officers of the Lord Chief 
Justice or Lord Chief Baron, as the case may be, to 
appoint from time to time fit and proper persons, to be 
approved by the said Lord Chief Justice or Lord 
Chief Baron, to attend for them and on their behalf 
respectively before such judge ; and the trial of every 
cause which shall be so had by virtue of this act shall, 
if necessary, be entered of record, as having been had 
before the judge by whom such cause in fact was tried. 

See 8. 95, as to the power of the courts to appoint 
sittings; and s. 59, as to the powers of the courts or a 
judge to make rules or orders for the attendance of a 
special or common jury. 

[COMPULSORY REFERENCE TO ARBITRA- 
TION.] 

3. If it be made appear, at any time after the issuing Power to 
of the writ, to the satisfaction of the court or a judge, JJS!^^ 
upon the application of either party, that the matter direct arbi- 
in dispute consists wholly or m part of matters of w^^^^^riai 
mere account which cannot conveniently be tried in ° ^ 
the ordinary way, it shall be lawful for such court or 
judge, upon such application, if they or he think fit, 
to decide such matter in a summary manner, or to order 
that such matter, either wholly or in part, be referred 
to an arbitrator appointed by the parties, or to an officer 
of the court, or, m country causes, to the judge of any 
county court, upon such terms as to costs and other- 
wise as such court or judge shall think reasonable ; and 
the decision or order of such court or judge, or the 
award or certificate of such referee, shall be enforce- 
able by the same process as the finding of a jury upon 
the matter referred. 

A question of considerable importance arises on [the 



4 THE COMMON LAW FROCEDURE ACT, 1854. 

Arbitration first part of this section ; namely, whether the power 
btfore trial. gJYen by the section can be exercised by a judge at the 
trial ? In many actions, the nature of which brings them 
within the scope of this section, it is probable that neither 
party will avail themselves of its powers, and that it will 
be left to the judge, as at present, to suggest at the trial 
the propriety of a reference. One party often assents 
while the other holds out. On such a contingency 
arising, can the judge, on the application of the counsel 
on the one side,^ after the case is launched, enforce the 
reference ? It would seem that he can, as well by force 
of the words of this section as of the general powers of a 
judge at nisi prius under the stat. 1 G. IV. c 55, s. 5 ; 
nevertheless s. 6 refers to an award or certificate under 
this section as " the award or certificate of a referee 
before trial." It is to be observed that if either party 
refiises to join in the appointment of an arbitrator, 
and the court or judge does not think fit to decide 
the matter in a summary manner, there is apparently 
no option with respect to the class of referees^ (for 
the power of a ju^e under s. 12, does not seem 
to be applicable). If it be a town cause, the order of re- 
ference must be to an officer of the court ; and if a 
country cause it must be to the judge of a county court. 
Although there does not appear to be any such limit 
imposed by the statute, the order of reference will be 
no doubt generally made to the judge of the county 
where the venue is laid, or where the matter in dispute 
arose. 

Unless explained and provided for by rules framed for 
that purpose, the use of the word *' certificate " in this 
section is somewhat ambiguous. Heretofore an arbi- 
trator was often empowered by a reference at nisi prias 
to express his decision by means of a certificate to the 
officer of the court, who entered the verdict in accordance 
with that certificate, and execution followed the verdict 
as in ordinary cases; but it would appear from this 
section that a certificate under it, is, per se, to have the 
force of a verdict. 

One advantage a ' certificate ' had over a formal award 
was, that it did not require a stamp ; but this distinction 
does not exist in the case of a reference under this statute, 
as 8. 30 exempts from stamp-duty all documents made or 
required under the Act. 

Special c«aes 4. If it shall appear to the court or a judge that the 

maybe allowance or disallowance of any particular item or 

stated, and j^gj^g j^ guch account depends upon a question of law 

fit to be decided by the court, or upon a question of 

fact fit to be decided by a jury, or by a judge upon 



ARBITRATION. 5 

the consent of both parties as herein-before proTided, question of 
it shall be lawful (or such court or judge to direct a ^^^ ^^• 
case to be stated, or an issue or issues to be tried ; and 
the decision of the court upon such case, and the find- 
ing of the jury or judge upon such issue or issues, 
shall be taken and acted upon by the arbitrator as 
conclusive. 

The judgment of the court on the case stated under 
this section would at first sight appear to be final, i.e., not 
subject to review by a court of error ; and this notwith- 
standing s. 32. It may be held, however, that the section 
merely means that the arbitrator b to take the facts 
as finally settled by the court or judge or jury, upon error 
brought or otherwise, and that the parties are not to be 
debim*ed from any appeal they now have. It can scarcely 
be intended that the finding of a jury on an issue is to bie 
so far final as that neither party can move for a new 
trial ; and if the power of so moving exists, there is no 
reason why the judgment of the court on a special case 
should not be subject to review by a court of error under 
8. 32. A special case should be confined to questions of 
law (Aldridge v. Great Western R. C. 3 M. & G. 615. 
Price V. Quarrel, 12 A. & El., 784). 

5. It shall be lawful for the arbitrator upon any Arbitrator 

compulsory reference under this Act, or upon any re- aiay state 
n t J p A* i- ai_ 1 • • • special case, 

ference by consent of parties where the submission is 

or may be made a rule or order of any of the superior 

courts of law or equity at Westmi7ister, if he shall 

think fit, and if it is not provided to the contrary, to 

state his award, as to the whole or any part thereof, in 

the form of a special case, for the opinion of the court, 

and when an action is referred, judgment, if so 

ordered, may be entered according to the opinion of 

the court. 

See s. 32 post, as to bringing error upon a special case, 
the provisions of which enactment would appear to apply 
to a special case, stated by an arbitrator under this 
section. 

6. If upon the trial of any issue of fact by a judge Power to 
under this Act it shall appear to the judge that the^^^jj^^j. 
questions arising thereon involve matter of account tration at 
which cannot conveniently be tried before him, it **™® ®^ *"*^» 
shall be lawful for him, at his discretion, to order that 

such matter of account be referred to an arbitrator ap- 
pointed by the parties, or to an officer of the court, or, 



6 THE COMMON I4AW PSOGBDURE ACT, 1864. 



when iflffnes in country causes, to a judge of any county court, upon 
tohisdec^ such terms as to costs, and otherwise, as such judge 
don. shall think reasonable ; and the award or certificate of 

such referee shall have the same effect as herein-before 
proyided as to the award or certificate of a referee 
before trial ; and it shall be competent for the judge to 
proceed to try and dispose of any other matters in 
question, not referred, in like manner as if no reference 
had been made. 

It is to be observed that this section is confined to the 
trial of issues of fact by a judge, and therefore if a cause 
be permitted by both parties to proceed to issue and trial 
by a jury as heretofore, without any application under 
this Act, the judge has no power to compel a reference. 
In that case any power he may possess must be under 
8. 3, which has been already considered. See also the 
note to that 'section as to the referee and the effect of the 
certificate. 



Proceedings 
before and 
power of 
8uch arbi- 
trator. 



7. The proceedings upon any such arbitration as 
aforesaid shall, except otherwise directed hereby, or 
by the submission or document authorizing the re- 
ference, be conducted in like manner, and subject to 
the same rules and enactments, as to the power of the 
arbitrator and of the court, the attendance of witnesses, 
the production of documents, enforcing or setting aside 
the award, and otherwise, as upon a reference made 
by consent under a rule of court or judge's order. 

Power to ^* ^ ^^7 ^^^^^ where reference shall be made to 

send back to arbitration as aforesaid, the court or a judge shall have 
arbitrator, power at any time, and from time to time, to remit 
the matters referred, or any or either of them, to the 
re-consideration and re-determination of the said arbi- 
trator, upon such terms, as to costs and otherwise, as to 
the said court or judge may seem proper. 

The court or a judge has power to remit the matters 
referred from time to time in all cases, in which a reference 
has been ordered before the trial under s. 3 ; or at the 
trial under s. 6. Whetiier the court will be able to send 
back to the arbitrator any matters referred under s. 8, 
will depend on the clauses of the agreement or submission ' 
to arbitration (Nickalls v. Warreny 6, Q. B., 615). 

The cases in which an award will be referred back to 
the arbitrator are stated in Ritssell on Arbitraticm, p. 658. 
The power of the court to do so is discretionary, as 
in the case of enlarging the time for making the award. 
They will not refer matters back where tbere has been a 



ABBiTSATION. 7 

long delay sinee the last step was takoi» and sach delay is 
not satisfactorily accounted for ; for the position of the 
parties may be altered, and they may be miable to 
produce their witnesses (Doe d. Mays v. CarmeU, 22 L. J. R. 
321, Q. B. ; and see Edwards v. Davies, 2 Com. L. Rep., 
681). 

Hitherto an application to refer back to the arbitrator 
must have been within the same time as an application 
to set aside the award (Doe d. Banks v. Holmes, 12 Q.B., 
951). Though it is said it may now be made at any time, 
this section must be read with s. 9 ; and an application 
to refer back will therefore require to be made, within 
the first seven days of the term next following the 
publication of the award. 

The remit of the matters referred is to be on such 
terms as to costs and otherwise as may seem proper. If 
an award is referred back on the ground of a defect 
therein, and the arbitrator hears fresh evidence and 
makes a new award, the costs of such matters, as are 
strictly connected with the abortive award, ought to be 
divided equally between the parties (Blair v. Jones, Ex. 
701). Wheace, however, an award is referred back to 
the arbitrator for amendment, and the costs of the 
reference are in his discretion, the two awards constitute 
(me award, and the arbitrator has the same power as to 
the costs of the amended award as he had in the disposal 
of the costs generally. (Macrae v. Maclean, Weekly 
Reporter, 1853—54, 63 ; 2 El. & Bl. 946). 

9. All applications to set aside any award made on Application 
a compulsory reference under this Act shall and may ^^,j2d* 
be made within the first seven days of the term next 
following the publication of the award to the parties, 
whether made in vacation or term ; and if no such - 
application is made, or if no rule is granted thereon, 
or if any rule granted thereon is afterwards discharged, 
such award shall be final between the parties. 

This and the following sections are confined to awards 
made on a reference under either of ss. 3 or 6. On the 
grounds on which an award will be set aside, and the 
time and mode of doing so, see Russell on Arbitration, 
p. 613, et seq. Where a rule to show cause is obtained to 
set aside an award, the several objections thereto in- 
tended to be insisted upon at the time of moving to make 
such rule absolute must be stated in the rule to show 
cause, (R. G. H. T. 1853, 169). 

QiuBre, whether the courts will refuse to set aside an 
award on a compulsory reference, for an objection in point 



8 THE COMMON UkW PROCEDURE ACT, 1854. 

of law, Dot apparent on the fitce of the award (Fuller v. 
Fenwick, 3 C. B. 705.) 

Enforcing 1^* ^QJ award made on a compulsory reference under 

of awards this Act may, by authority of a judge, on such terms 
forset^?^ as to him may seem reasonable, be enforced at any 
them aside, time after seven days from the time of publication, 

notwithstanding that the time for moving to set it 

aside has not elapsed. 

In cases where the application to set aside an award 
is in the nature of a writ of error, the successful 
party in the reference is considered to have a judg- 
ment, on which costs can be taxed, and an order for 
payment, under the I & 2 Vic. c. 110, s. 18, enforced, 
{Hare v. Fleay, 11 C. B. 472). An award on a compul- 
sory reference under this act is in this position. 

1" he costs may be taxed, notwithstanding the time for 
setting aside the award has not elapsed, R. 6. H. T. 
1853, 170. 

[AMENDMENTS IN THE LAW OF ARBITRA- 
TION.] 

If action 11. Whenever the parties to any deed or instrument 

SSJ^f'lSli, in writing to be hereaiter made or executed, or any of 
by one party , in ■ t ..',.•' 

afteraiihave them, shall agree that any then existmg or future 

»i^jfd*<> differences between them or any of them shall be 

court'or^'^ referred to arbitration, and any one or more of the 

Judge may parties SO agreeing, or any person or persons claiming 

JSiE!]^' through or under him or them, shall nevertheless 

ceedings. e x* i. i •!. • -^ • ^ 

commence any action at law or suit in equity agamst 

the other party or parties, or any of them, or against 
any person or persons claiming through or under him 
or them in respect of the matters so agreed to be 
referred, or any of them, it shall be lawful for the 
court in which action or suit is brought, or a judge 
thereof, on application by the defendant or defendants, 
or any of them, after appearance and before plea or 
answer, upon being satisfied that no sufficient reason 
exists why such matters cannot be or ought not to be 
referred to arbitration according to such agreement as 
aforesaid, and that the defendant was at the time of the 
bringing of such [action or suit, and still is ready and 
willing to join and concur in all acts necessary and 
proper for causing such matters so to be decided by 
arbitration, to maxe a rule or order staying all pro- 
ceedings in such action or suit, on such terms as to 



ARBITBATION. 9 

costs and otherwise, as to such court or judgre may staying , 
seem fit : Provided always, that any such rule or order ^J^^J^S- 
may at any time afterwards be discharged or varied as ment to refer, 
justice may require. 

Hitherto an aisreement to refer matters in dispute to 
arbitration did not oust the courts of their jurisdiction, 
and a plea to an action that such an agreement had been 
entered into, and that the arbitrator had entered on, and 
was proceeding with the reference, was bad [ it consti- 
tuted no defence {Harris v. Reynolds^ 7 Q. B. 71). But 
if a reference under a rule of court were pending, and 
it had been agreed that it should operate as a stay 
of proceedings, it might have been made the subject 
of an application to the court to stay proceedings, 
{Dicua V. Jay, 6 Bing. 519; Liouia v. Kermode, 8 Taunt. 
146). 

An application may be made under this section to 
stay the proceedings in an action, before the agreement 
to refer has been made a rule of court, which every 
agreement to refer may now be, unless express provision 
be made to the contrary (s. 17). The application can 
only be made after appearance and before plea. The 
rule or order for the application may be to the court or at 
chambers, and will probably be to show cause, that the 
plaintiff may have an opportunity of showing, either 
that good reasons exist why the matters in dispute 
should not be referred, — or, that the defendant was not 
ready or willing to concur in all acts, necessary and 
proper for causing the matters to be decided by arbitra- 
tion. 

The grounds on which leave to rcYoke an agreement to 
refer has hitherto been granted, are stated in Russell on 
Arbitration, p. 163. 

The language of the section includes deeds or instru- 
ments, by which the parties agree that future differences 
shall be referred to arbitration. This may give rise to a 
very important question as to how far the courts will 
enforce agreements which are yoid at law, as tending to 
oust the jurisdiction of the superior courts. For although 
it is not unlawful for parties to agree to refer to arbitra- 
tion the amount of contingent damage, or the time for 
paying it, or any matters of that kind which do not go 
to the root of the cause of action, yet, on the other 
hand, the courts have hitherto refused to uphold any 
agreement, which is to prevent the suffering party from 
coming into a court of law ; or, in other words, which 
ousts the courts of their jurisdiction. (See the judgment 

F 



10 THE COMMON lAW FROCEDUSE ACT, 1854. 



On failure of 
parties or 
arbitrators, 
judge may 
appoint 
single arbi- 
trator or 
umpire. 



of the Court of Error in Scott ▼. Avery ^ 8 Ex. 500.) 
Qwjsre, "whether the courts 'will, under this section, con- 
sider it a " sufficient reason why such matters ought not 
to he referred to arbitration /' that the agreement tends 
to oust their own jurisdiction ? 

12. If in any case of arbitration the document 
authorizing the reference provide that the reference 
shall be to a single arbitrator, and all the parties do 
not, after differences have arisen, concur in the appoint- 
ment of an arbitrator; or if any appointed arbitrator 
refuse to act, or become incapable of acting, or die, and 
the terms of such document do not show that it was 
intended that such vacancy should not be supplied, 
and the parties do not concur in appointing a new one ; 
or if, where the parties or two arbitrators are at 
liberty to appoint an umpire or third arbitrator, such 
parties or arbitrators do not appoint an umpire or third 
arbitrator ; or if any appointed umpire or third arbitra- 
tor refuse to act, or become incapable of acting, or die, 
and the terms of the document authorizing the refer- 
ence do not show that it was intended that such a 
vacancy should not be supplied, i)nd the parties or 
arbitrators respectively do not appoint a new one ; then 
in every such instance any party may serve the re- 
maining parties or the arbitrators, as the case may be, 
with a written notice to appoint an arbitrator, umpire, 
or third arbitrator respectively ; and if within seven 
clear days after such notice shall have been served no 
arbitrator, umpire, or third arbitrator be appointed, it 
shall be lawful for any judge of any of the superior 
courts of law or equity at Westminster ^ upon sum- 
mons to be taken out by the party having served such 
notice as aforesaid, to appoint an arbitrator, umpire, or 
third arbitrator, as the case may be, and such arbitra- 
tor, umpire, and third arbitrator respectively shall have 
the like power to act in the reference, and make an 
award, as if he had been appointed by consent of all 
parties. 

The effect of this and the two following sections has 
been stated in the Introduction, p. xxxvi. 

13. When the reference is or is intended to be to 
two arbitrators, one appointed by each party, it shall 

tors and one be lawful for either party, in the case of the death, 
party fail to refusal to act, or incapacity of any arbitrator appointed 

appoint. 



When refer 
ence is to 



ABBITRATION. 1 1 

by him, to substitute a new arbitrator, unless the other party 

document authorizing the reference show that it was ^{tStor^to 

intended that the vacancy should not be supplied ; and act alone. 

if on such a reference one party fail to appoint an 

arbitrator, either originally or by way of substitution as 

aforesaid, for seven clear days after the other party shall 

have appointed an arbitrator, and shall have served 

the party so failing to appoint with notice in writing 

to make the appointment, the party who has appointed 

an arbitrator may appoint such arbitrator to act as sole 

arbitrator in the reference, and an award made by him 

shall be binding on both parties as if the appointment 

had been by consent; provided, however, that' the 

court or judge may revoke such appointment on such 

terms as shall seem just. < 

14. When the reference is to two arbitrators, and Two arWtni- 
the terms of the document authorizing it do not show *®™ ™*y 
that it was intended that there should not be an umpire, umpire. 

or provide otherwise for the appointment of an umpire, 
the two arbitrators may appoint an umpire at any time 
within the period during which they have power to 
make an award, unless they be called upon by notice as 
aforesaid to make tlie appointment sooner. 

■ ♦ ■ 

15. The arbitrator acting under any such document Awanito be 
or compulsory order of reference as aforesaid, or under madem three 
any order referring the award back, shall make his award unless par- 
under his hand, and (unless such document or order ties or court 
respectively shall contain a different limit of time) ^°^*^ **"*** 
within three months after he shall have been appointed, 

and shall have entered on the reference, or shall have 
been called upon to act by a notice in writing from 
any party, but thp parties, may by consent in writing, 
enlarge the term lor making the award ; and it shall 
be lawful for the superior court of which such submis- 
sion, document, or order is or may be made a rule or 
order, or for any judge thereof, for good cause to be stated 
in the rule or order for enlargement from time to time, 
to enlarge the term for making the awards ; and if no 
period be stated for the enlargement in such consent 
or order for enlargement, it shall be deemed to be an 
enlargement for one month ; and in any case where an 
umpire shall have been appointed, it shall be lawful for 
him to enter on the reference in lieu of the arbitrators, . 

p2 



12 THE COMMON LAW FBOCEDUBB ACT, 1854. 



Kale to de- 
liver posses- 
sion of land 
pursuant to 
award to be 
enforced as a 
judgment in 
ejectment. 



if the latter shall have allowed their time or their 
extended time to expire without maicin^ an award, or 
shall have delivered to any party or to the umpire a 
notice in writing stating that they cannot agree. 

The power of the court to enlarge the time for making 
the award undet this section, as under 3 & 4 Will.IV, c. 42, 
s. 39, is discretionary, and will not be exercised unless 
both parties will afterwards be on an equal footing 
{Edwards v. Davies, 2 Com. L. Rep. 681, where the 
recent cases on this subject are collected) ; nor will it be 
exercised where there has been a long delay since the 
last step was taken, and such delay is not satisfactorily 
accounted for. {Doe. d, MayoY, Carmell, 22 L. J. R. 221, 
Q. B.) 

16. When any award made on any such submifision, 
document, or order of reference as aforesaid directs 
that possession of any lands or tenements capable of 
being the subject of an action of ejectment shall be 
delivered to any party, either forthwith or at any 
future time, or that any su(;h party is entitled to the 
possession of any such lands or tenements, it shall be 
lawful for the court of which the document authorizing 
the reference is or is made a rule or order, to order any 
party to the reference who shall be in possession of any 
such lands or tenements, or any person in possession of 
the same claiming under or' put in possession by him 
since the making of the document authorizing tlie 
reference, to deliver possession of the same to the 
party entitled thereto, pursuant to the award, and such 
rule or order to deliver possession shall have the effect 
of a judgment in ejectment against every such party or 
person named in it, and execution may issue, and 
possession shall be delivered by the sheriff^' as on a 
judgment in ejectment. 

As the title to land could not pass by an award, it 
frequently became necessary that the award should direct 
a conveyance to be made (see Johnson v. Wilson, Willes, 
248), and that direction would only be enforced by action, 
or by a bill in e(juity. This clause will, in many cases, 
avoid the necessity for the delay and expense attending 
that course. 

Agreement 17. Every agreement or submission to arbitration by 
orsubmis- consent, whether by deed or instrument in writing, not 
wrUing may under seal, may be made a rule of any one of the 



ABBITAATION. 13 

superior courts of law or equity at Westminster, on bemuideruie 
the application of any party thereto, unless such agrree- J^^i^JJ'^'con- 
ment or submission contain words purporting that the trary inten- 
partie^ intend that it should not be made a rule of ^^ appear, 
court ; and if in any such agreement or submission it 
is provided that the same shall or may be made a rule 
of one in (^articular of such superior courts, it may be 
made a rule of that court only ; and if when there is no 
such provision a case be stated in the award for the 
opinion of one of the superior courts, and such couit 
be specified in the award, and the document autho- 
rizing- the reference have not, before the publication of 
the award to the parties, been made a rule of court, 
such document may be made a rule only of the court 
specified in the award ; and when in any case the 
document authorizing the reference is or has been 
made a rule or order of any one of such superior 
courts, no other of sucli courts shall have any jurisdic- 
tion to entertain any motion respecting tlie arbitra- 
tion or award. 

This enactment practically repeals the provision of 
the Stat. 9 & 10 Will. IV, e. 25, which first enabled either 
of the parties to have an agreement to refer made a 
rule of court. It was necessary for the parties, under 
that statute, *' to insert such their agreement in their 
submission." Now, however, every agreement in writing 
to refer matters in difference to arbitration, may, on 
the application of any party thereto, be made a ruld of 
court, unless the agreement contains words purporting that 
the parties intend that it should not be made a rule of court. 

[PROCEEDINGS AT THE TRIAL.] 

18. Upon the trial of any cause the addresses to the speeches to 
jury shall be regulated as follows : the party who toe jury, 
begins, or his counsel, shall be allowed, in the event of 
his opponent not announcing at the close of the case of 
the party who begins his intention to adduce evidence, 
to address the jury a second time at the close of such 
case, for the purpose of summing up the evidence; and 
the party on the other side, or his counsel, shall be 
allowed to open the case, and also to sum up the evi- 
dence (if any) ; and the right to reply shall be the 
same as at present. 

The reasons which induced the Common Law Com- 



14 THE COMMON LAW PBOCEDUBE ACT, 1854. 

Speecha io missioners to recommend the alteration effected by ^h\a 
the jury. section, are stated in the Introduction, p. xzzix. 

It will be observed, that it is only on a trial by jury 
that the rule has been altered. On a trial by a judge or 
the court, the rule of practice remains unchanged, and 
the " inconvenience and injustice/' animadverted on by 
the Commissioners (Second Beport, p. 9), continue as 
before. 

If the advantage of the reply is so great as it is repre* 
sented to be, it is not unlikely that many questions will 
arise on the interpretation to be put on this section, as 
the parties to an action will, as hitherto, resort to the 
course which will secure the right of reply, if it be pos- 
sible to do so. In this view a plaiiftiff would seem to 
have an advantage, by its being open to him, either to 
rely on a primft facie case, and answer the defence when 
it is proved, or to meet at once the defence set up by the 
pleadings. ( Williams v. Davies, I C. & M. 464 ; Doe d, Nichol 
V. Bowyer, 16 Q. B. 805 ; Shaw v. Beck, 8 Ex. 392.) 

It would be easy, but out of place here, to suppose 
cases in which questions may arise. The order \)i be- 
ginning it has been decided is a matter for the disposal 
of the judge at nisi prius ; and an incorrect ruling as to 
the proper party to l^gin is no ground for a new trial, 
unless the ruling " did clear and manifest wrong." 
{Brandford v. Freeman^ 6 Ex. 734.) This principle would 
seem to be applicable to the rulings of a judge at nisi 
prius under this section. 

A question may be raised whether this section is appli- 
cable to the trial of indictments removed by certiorari, 
which are tried on the civil side of the court ; or in other 
words, whether the trial of an indictment, removed by 
certiorari, is the trial of a " cause " within the meaning 
of the section. 

Power to 19. It shall be lawful for the court or judge, at the 

a4jouru triti. trial of any cause, where they or he may deem it right 

for the purposes of justice, to order an adjournment for 

such time, and subject to such terms and conditions as 

to costs, and otherwise, as they or he may think fit. 

As to the reasons which led to this enactment, see 
Introduction, p. xli. An adjournment will probably be 
ordered " where the circumstances are such that the 
court would afterwards grant a new trial ;" as when by a 
temporary adjournment a deficiency in proof may be 
supplied ; or where the judge may " deem it right for 
the purposes of justice, in like manner as was anciently 
done for the purpose of a view." {Second JReport, p. 10.) 



TBIAL. 15 

A new trial has hitherto been granted, when one party j^^m- 
was taken by surprise by his adversary's case. Such ment of the 
would seem to be a proper case for an adjournment. The ^"^ 
party must be taken wholly by surprise, {Reverts v. Holmes, 
2 Com. Law Rej)., 726.*) So a deficiency in proof 
may occur; and if it occur from other causes than the 
negligence of the party on whose part the failure arises, 
in getting up his proof, an adjournment may be allowed. 
The want of an attesting witness (s. 26) or a document 
taming out to be unstamped, or hot properly stamped, 
(8. 28) will no longer compel a party to submit to a 
defeat. A postponement has hitherto been granted 
{Thomson v. Lewis, 2 Com. Law Rep., 707) when a ne- 
cessary witness was absent, if it was applied for on 
proper affidavits before the trial was begun. Such " a 
deficiency in proof, " it would seem, will now be a good 
ground for an application for an adjournment. 

An affidavit may be required before an adjournment 
will be granted ; and payment of the costs of the day 
will in Sll probability £>rm a condition precedent. 

An adjournment for a view, under this revived power 
of the courts, will not likely be often applied for, as either 
party may avail himself of the other provisions of the 
statute, for the purpose of an inspection by the jury or the 
witnesses (s. .58). 

This enactment, it may be added, applies to every 
court of civil judicature in England and Ireland (s. 103). 

[ALTERATIONS IN THE LAW OF EVIDENCE.] 

20. If any person called as a witness, or required or Affirmation 
desiring to make an affidavit or deposition, shall refuse jjjjf^^er- 
or be unwilling from alleged conscientious motives to tain cases. 
be sworn, it shall be lawful for the court or judge, or 
other presiding officer, or person qualified to take affi- 
davits or depositions, upon being satisfied of the 
sincerity of such objection, to permit such person, in- 
stead of being sworn, to make his or her solemn affirm- 
ation or declaration in the words following ; videlicet, 

" I, A, B. do solemnly, sincerely, and truly affirm 
** and declare, that the taking of any oath is, according 



. * The cases illustrating the principles on which the 
courts act with respect to new trials in special circum- 
stances, more or less partaking of the nature of surprise, 
are collected in a note to Lewis v. Trussler,^ 2 Com* Law 
Rep., 728. 



16 THE COMMON LAW PROCEDURE ACT, 1854. 



Penong 

tpahing a 

false afOrma- 
tion subject 
to the same 
punishment 
as for per- 
jmy. 



How far a 
party may 
discredit his 
own witness. 



'* to my religious belief, unlawful ; and I do also 
" solemnly, sincerely, and truly affirm and declare, 
" &c." 

Which solemn affirmation and declaration shall be of 
the same force and effect as if such person had taken an 
oath in the usual form. 

The alteration effected in the law by this section is 
stated in the Introduction, chap. ix. The examination 
under s. 48, of a person who refuses to make an affidavit, 
will no doubt be considered as the examination of a 
person " called as a witness," so as to make this provision 
applicable to it. The enactments of this and the twelve 
following sections apply to every court of civil judicature 
in England and Ireland (s. 103). 

21. If any person making such solemn affirmation or 
declaration shall wilfully, falsely, and corruptly affirm 
or declare any matter or thing, which, if the same had 
been sworn in the usual form, would have amounted to 
wilful and corrupt perjury, every such person so offend- 
ing shall incur the same penalties as by the laws and 
statutes of this kingdom are or may be enacted or pro- 
vided against persons convic|ed of wilful and corrupt 
perjury. 

22. A party producing a witness shall not be allowed 
to impeach his credit by general evidence of bad cha- 
racter, but he may, in case the witness shall in the 
opinion of the judge prove adverse, contradict him by 
other evidence, or, by leave of the judge, prove that 
he has made at other times a statement inconsistent with 
his present testimony ; but before such last-mentioned 
proof can be given, the circumstances of the supposed 
statement, sufficient to designate the particular occasion, 
must be mentioned to the witness, and he must be 
asked whether or not he has made such statement. 

The general principle and object of this section have 
been stated in the Introduction, pp. Ixii-lxv. It will be 
useful, however, to consider the particular effect of this 
and the subsequent provisions, and in the first place to 
state how fiir a party may under this new law, combined 
with the old practice, contradict or impeach the credit of 
his witness. 

** A party producing a witness shall not be allowed to 



(••^••i*^pr*B*»'^^>rr T - ^* 



LAW OP EVIDENCE. 17 

impeach his credit by general Evidence of bad cha- How far a 
racter." VO:rty way 

This provision, not interfering with the previous law, ^i^[^^, 
but beinff only in restraint of the subsequent power, does 
not call for any further remark, than that it must not be 
inferred, from the use of the words " general evidence," 
that a party may give particular evidence of bad cha- 
racter ; for such particular evidence as to the character of 
a witness (that is to say, particular instances of bad con- 
duct) is not allowed to be given by either party, unless 
material to the issue, although a conviction for relony or 
misdemeanor may now be given in evidence, if a witness 
denies or refuses to admit such conviction (s. 25, post), 

A party producing a witness will not even, it seems, be 
allowed to question him as to whether he has been con- 
victed of any offence, or to give evidence in proof of it ; 
for s. 25 only allows " the opposite party'* to prove a pre- 
vious conviction. 

The provisions of the Act are intended to meet the case 
of a witness imexpectedly turning round on the party 
calling him ; but not to enable a witness to be put for- 
ward avowedly, in the first instance, as unworthy of credit ; 
although in certain exceptional cases, where a party is, 
from the nature of the inquiry obliged to call an adverse 
witness, he may contradict that witness as to facts. 

But what a party may do, " in case the witness shall in 
the opinion of the judge prove adverse," is : — 

I. ** To contradict him by other evidence ;" that is to say, 
to prove by other witnesses or by documents,. that the 
statements of the witness are untrue. 

This provision does not introduce any new rule of evi- 
dence. In three classes of cases a party is always per- 
mitted to contradict the statement of a witness called by 
him. (First.) Where he is under the necessity of calling 
a witness for the purpose of satisfying the formal proof 
which the law requires, he is not precluded from calling 
other witnesses who give contradictory testimony (Starkie 
on Evidence, 4th edit., p. 244), as where an attesting wit- 
ness denies the fact of his attestation, or the signature of 
the party. (Secondly.) Where a witness, called to prove a 
particular fact, does not deny that &ct, but gives evidence 
(generally on cross-examination) of other facts material to 
the same or other issues, in the cause, as in the case put 
by Tindal, C. J., in delivering judgment in Bradley v. 
Ricardot 8 Bing. 58 ; or where a plaintiff, for some formal 
proof, is obliged to make a witness of the defendant's 
attorney, who, on cross-examination, makes a statement 
adverse to the plaintiff; or where, on the question of a 

f3 



18 THE COMMON LAW PROCEDURE ACT, 1854. 

How far a devise of real estate, an attesting witness is called to prove 

paHy rmy and does prove the execution of the will, but entertains 

duicredit his ^n adverse opinioD as to the capacity of the testator, as in 

omnu-Uffess. ^^^,^ ^ Jolliffe, 1 Wm. Bl. 365. In either of these' classes 

of cases it is immaterial, so far as the right of the party 

to call contradictory evidence is concerned, whether he 

knew beforehand that the witness would prove adverse. 

(Thirdly), Where a witness by surprise gives evidence 

against the party who called him, that party will not be 

precluded from proving his case by other witnesses ; for 

it would be contrary to justice, that the treachery of a 

witness should exclude a party, &om establishing the truth 

by aid of other testimony. (Starkie, ut supra,) 

Such contradictions must, on the general rules of evi- 
dence, be of facts material to the issue to be tried, for as 
the witness cannot be examined except as to facts material 
to the issue, by necessity he cannot be contradicted except 
on such material facts. 

II. Independently of, or in addition to the contradic- 
tion as to facts, by other evidence, the party may " by 
leave of tfte judge, prove that the witness has made at other 
tirnes a statement inconsistent with his present testimony," 
This settles what was before a moot point, rather than 
introduces any positive new rule of evidence. See the 
Introduction, ante, p. Ixii. 

The " statement ** may be verbal or in writing. If the 
latter, it must be, it would seem, produced and res^d, before 
any questions can be put to the witness upon it, in accord- 
ance with the rule laid down in the Queen's case as to the 
cross-examination of witnesses. (Introduction, p. Ixiii.) 
This depends, however, on the meaning to be given to the 
word " cross-examined** in s. 24, post. It is submitted that 
the word " cross-examined'* in that section, and the word 
" cross-examination'* in s. 23, are confined to their ordi- 
nary sense of an examination by the party opposed to him 
who has called the witness, and do not apply to any exa- 
mination of a party's own witness under s. 22. 

The supposed statement, in order to allow of proof being 
given of it, must be material to the issue, or (to use the 
words of the subsequent sections) it must be " relative to 
the subject matter of the cause.** 

It is to be observed, that this section does not interfere 
with the right of a party to put a document into a witness's 
hands for the purpose of refreshing his memory ; and this 
right, although ostensibly permitted for that purpose, is 
sometimes used not so much vnth a view to assist the 
memory, as to operate as a check on the mind of an ad- 
verse witness, from saying anything inconsistent with the 
truth, or at least with that previous statement. 



wa^«MiM«ii^W«l^»4|r**«feil.'«V*llUi«P*^£MM!*^JgL!. .^rT 



LAW OF EVIDENCE. 19 

^3. If a witness, upon cross-examination as to a proof of con- 
former statement made by him relative to the subject tradictory 
matter of the cause, and inconsistent with his present Jdverae wit- 
testimony, does not distinctly admit that he has made ness. 
such statement, proof may be given that he did in fact 
make it ; but before such proof can be given, the cir- 
cumstances of the supposed statement, sufficient to de- 
signate the particular occasion, must be mentioned to 
the witness, and he must be asked whether or not he 
has made such statement. 

This section removes the doubt hitherto entertained* 
whether when a witness on being asked as to a contradic- 
tory verbal statement, neither admits nor denies it, evi- 
dence of the statement is admissible. Introduction, p. 
Ixvi. It was never doubted that statements by witnesses 
on other occasions relevant to the matter at issue, and ex- 
pressly denied by them on the trial, were admissible in 
order to impeach the value of that testimony. As the 
proof allowed to be given by this section is of some affirm- 
ative statement, a question may not improbably arise, as to 
whether this section applies to the cross-examination of a 
witness, for the purpose of showing that he has made a 
statement, relative to the subject matter of the cause, and 
which statement does not mention the particular fact or 
circumstance sworn to at the trial. It may be argued, on 
the other hand, that the refusal to admit the withholding 
of a fact in a former statement, is in fact a refusal to 
admit the making of such particular statement, and con- 
sequently that proof may be given, under this section, that 
he did in fact make such omitting statement. 

24. A witness may be cross-examined as to previous cross-exa- 
statements made by him in writing, or reduced into mination a& 
writing, relative to . the subject matter of the cause, .state^nta 
without such writing being shown to him ; but if it is in writing. 
intended to contradict such witness by the writing, his 
attention must, before such contradictory proof can be 
given, be called to those parts of the wnting which are 
to be used for the purpose of so contradicting him : 
Provided always, that it shall be competent for the 
judge, at any time during the trial, to require the pro- 
duction of the writing for his inspection, and he may 
thereupon make such use of it for the purposes of the 
trial as he shall think fit. 

For the reasons stated in the lNTRODUCTioN,this section 
alters the rule laid down in the Queen*s case, as to the 
cross-examination of witnesses in respect of previous 
statements in writing. (Introduction, pp. Ixvii.,, 
Ixviii.) 



20 THE COMMON LAW PBOC£DUR£ ACT, 1854. 



Crou-exa- 
minaUona* 
toprtviout 
statements 
in uriting. 



The effect of the section appears to be this : the 
witness, in the first instance, may be asked, whether he 
has made such and such a statement in writing, without 
its being shown to him. If he denies that he has made 
it, the opposite party cannot put in the statement, with- 
out first putting it in the witness's hands and calling his 
attention to it, and to any parts of it relied upon as a 
contradiction. So far, no difficulty is likely to arise ; 
but suppose the witness, instead of denying that he has 
made the statement, admits it, although the object of 
the cross-examining counsel has been attained, it may 
be very important for the party calling the witness to 
have the whole statement, wluch may not be in his 
possession, before the court and jury. If he is aware of 
the contents, he will, it would seem, in such case, be at 
liberty to re-examine the witness, as to the residue of the 
statement, without its being produced, on the general 
rule that if part of any connected conversation or state- 
ment be given, the whole may be used ; or he may ask 
the judge, under the latter part of the section, to require 
the production of the writing. 

This section appears to be free from the doubt, 
suggested with reference to the previous section, as to 
its application to the cross-examination of a witness, for 
the purpose of showing that he has made a statement 
relative to the subject matter of the cause, in which he 
omitted to mention or refer to the fact or circumstance 
now deposed to. 

It must be always borne in mind that the section is 
confined to written statements made by the witness, relative 
to the subject matter of the cause. This section, there- 
fore, does not interfere with the decision of the court in 
Macdonnell v. Evans, 1 1 C. B., 930. In that case, upon 
the cross-examination of a witness, a letter in his own 
handwriting was shown to him, and he was asked— 
"Did you not write that letter in answer to a letter 
charging you with forgery ?" And it was held that the 
question was inadmissible for any purpose, inasmuch as 
it was an attempt to get at the contents of a written do- 
cument, which, for anything that appeared, might have 
been produced. As the question, therefore, referred to 
the contents of a letter written by a third person, and 
not by the witness, the case is not affected by this section. 
It is necessary to notice this, as the Commissioners in 
their Report apparently refer to the case of Macdonneli 
V. Evansj as one of the judicial decisions proceeding on 
the rule, which is now superseded. 

25. A witness in any cause may be questioned as to 
whether he has been convicted of any felony or mis- 



u 



«n>«««»Mi^p«««V«««»^p««M*«v««aMM 



LAW OF EVIDENCE. 21 

demeanor, and, upon being so questioned, if he either Proof of 
denies the fact, or refuses to answer, it shall be lawful JtettJS^fT 
for the opposite party to prove such conviction ; and a witness may 
certificate containing the substance and effect only be given, 
(omittine the formal part) of the indictment and con- 
viction ior such oiience, purporting to be signed by 
the clerk of the coort, or other officer having the 
custody of the records of the court where the offender 
was convicted, or by the deputy of such clerk or officer 
(for which certificate a fee of five shillings and no more 
shall be demanded or taken), shall, upon proof of the 
identity of the person, be sufficient evidence of the said 
conviction, without proof of the signature or official 
character of the person appearing to have signed the 
same. 

Introduction, pp. Ixviii.-lxx. The mode of proving 
the conviction is tne same as that provided by the 7 & 8 
Geo. IV., c. 28, s. 11, in the case of persons charged 
with committing a felony, after a previous conviction 
for felony. It has been held, under that statute, that 
the certificate must state, that judgment was given for 
the felony mentioned in it ; so that it is not sufficient for 
it to state a conviction. {Beg. v. Ackroydy 1 C. & K., 
1.58). With respect to the identity, it is sufficient to 
prove that the witness is the person who underwent the 
sentence mentioned in the certificate; and it is not 
essential to call a witness, who was present at the 
trial to which the certificate refers. {Beg, v. Crofts, 
9C.&P., 219.) 

This section does not interfere with the previous 
right, to cross-examine a witness as to the commission of 
offences, either for the purpose of discrediting him, or 
contradicting him, if the question is so connected with 
the point in issue, that the witness may be contradicted 
by the evidence if he deny the facts. Four rules on this 
subject may be considered as established in practice. 

1. A witness may be asked any question, whether with 
a view to his discredit, or to contradict him (where con- 
tradictory evidence is admissible), although the answer 
may also tend to subject him to a criminal prosecution, a 
penalty, or a forfeiture. 

2. If the answer has such tendency, the witness is not 
bound to give it, whatever the object or effect of the 
question may be ; and he is to judge for himself whether 
tne effect of the.answer would be' such as to subject him 
to a criminal charge {Fislier v. Bonalds, 22 L. J. R. 62 C.P.). 

3. Evidence cannot be adduced to contradict the 



mmm0»0mm0mm^mm 



22 THE COMMON LAW FBOCEDURE ACT, 1854. 

witness, unless the fact sought to be established is 
material to the issue. 

4. Before such evidence is given, the question must 
be put to the witness, in order to afford him an oppor-* 
tomty for explanation. 

Attesting 26. It shall not be necessary to prove by the attest- 

^*^ °itf? ^"o witness any instrument to the validity of which 
except^ ' attestation is not requisite ; and such instrument may 
certain cases, be proved by admission, or otherwise, as if there had 
been no attesting witness thereto. 

For the reasons for this enactment, see Introduction, 
p. Ixx. The recent decision, there referred to, was in 
the case of Whyman v. Garth, 8 Ex., 803. 

As to calling upon a party to admit a document, by 
notice to admit, and the proof by affidavit of such admis- 
sion when made, see The Common Law Procedure Act, 
1852, ss. 117, 118; and as to the form of a notice to 
admit, R. G. H. T., 1853, 29. 

Calling the attesting witness is only dispensed with in 
those cases in which an attestation is not requisite to the 
validity of the instrument. Where attestation is neces- 
sary to the validity of an instrument, the witness must 
be called, or his absence accounted for, and his signature 
proved. 

The instruments to the validity of which attestation is 
requisite may be divided into two classes ; first, instru- 
ments which the parties themselves, or those under 
whom they claim or act, have stipulated, shall require 
one or more attesting witnesses ; and, secondly , instru- 
ments which require attestation under some statutable 
provision. Of the former class, the most usual are deeds 
and instruments executed under powers contained in and 
reserved by other instruments. Powers of appointment 
under marriage settlements afford a familiar illustration. 
Among the other class of instruments requiring attest- 
ation may be enumerated : — 

Wills and codicils (1 Vic, c. 26). 

Warrants of attorney, and cognovits (1 & 2 Vic. 
c. 110). 

Agreements between the master of a ship and a mer- 
chant seaman (The Merchant Shipping Act, 1854, 
Part III.) 

Even in these cases the necessity for calling the attest- 
ing witness only arises where it is necessary to prove the 
instrument at all. For the parties against whom any of 
these instruments requiring attestation are sought to be 
used, may waive the necessity for calling the attesting 
witness by admissions. Thus, if in the course of the 



LAW OF EVIDENCE. 23 

proceedings in the cause, the party voluntarily admits 
the execution, or if by his pleadings he does not require 
the execution to be proved, there is no necessity for 
calling the attesting witness. But where proof is 
required, the necessity for calling the attesting witness 
cannot be avoided by putting the party to the deed, and 
against whom it is sought to be used, in the witness-box, 
and forcing an admission of the execution from him 
{Whymanjf. Garth, 8 Ex. 803). 

27. ComparijBon of a disputed writing with any Comparison 
writing proved to the satisfaction of ;the judge to be J^^S?*^ 
genuine, shall ;be permitted to be made by witnesses ; 

and such writings, and the evidence of witnesses 
respecting the same, may be submitted to the court and 
jury as evidence of the genuineness or otherwise of the 
writing in dispute. 

The nature of the alteration of the previous rule of 
law effected by this section has been fully stated in the 
Introduction, pp. Ixxii-lxxv. 

28. Upon the production of any document as Provision for 
evidence at the trial of any cause, it shall bfe the dutjr J^JJ^^g ^t 
of the oflScer of the court, whose duty it is to read sucn the trial. 
document, to call the attention of the judge to any 
omission or insufficiency of the stamp ; and the docu- 
ment, if unstamped, or not sufficiently stamped, shall 

not be received in evidence until the whole, or (as the 
case may be) the deficiency of the stamp-duty, and the 
penalty required by statute, together with the addi- 
tional penalty of one pound, shall have been paid. 

The importance of this section to suitors has been 
already pointed out [Introduction, p. Ixxv] ; and if the 
duty cast upon the officer of the court be exercised with 
vigilance, it is not improbable that the revenue will be a 
considerable gainer, as it is no longer in the power'of parties, 
by mutual agreement, to waive objections to the admis> 
sibility of instruments. Hitherto if the parties did not 
call the attention of the court to the stamp, judges were 
not vigilant to discover defects, but woiUd even allow 
oBjections .to be withdrawn — no reliapce can now be 
placed on the forbearance of an adversary; and, on the 
other hand, the cases are very rare, in which the opposite 
party will not avail himself of the right, which of course 
is not taken away, of himself objecting at the trial to 
the admissibility of instruments. It is true the objection. 
isjao longer fatal if well founded, nor if overruled is it 
a ground of moving for a new trial ; but as the remedy 



24 THE COMMON LAW PROCEDURE ACT, 1864. 

giyen by this section will sometimes be worse than the 
isease, to compel the party to weaken his case' by with- 
drawing the instrument, and in almost every case will 
make him more open to terms of compromise or arrange- 
ment, sufficient inducement still remains to prompt the 
adversary to take the objection. 

This section does not of course interfere in any way with 
the right of the court, or the parties to use unstamped 
instruments for collateral purposes only. The cases on 
this subject are collected in Chitty's Statutes, vol. iii. p. 
1205, note (c). 

Officer of the ^^' Such officer of the court shall, upon payment to 
court to him of the whole, or (as the case may be) of the defi- 
duty«md^^ ciency of the stamp-duty, payable upon or in respect 
penalty. of such document, and oi the penalty required by 
statute, and of the additional penalty of one pound, give 
a receipt for the amount of the duty or deficiency which 
the judge shall determine to be payable, and also of the 
penalty, and therepon such document shall be admissible 
m evidence, saving all just exceptions on other grounds ; 
and an entry of the fact of such payment, and of the 
amount thereof, shall be made in a book kept by such 
officer ; and such officer shall, at the end of each sit- 
tings or assizes (as the case may be), duly make a 
return to the Commissioners of the Inland Revenue of 
the monies, if any, which he has so received by way of 
duty or penalty, distinguishing between such monies, 
and stating the name of the cause and of the parties 
from whom he received such monies, and the date, if 
any, and description of the document for the purpose 
of identifying the same ; and he shall pay over the 
said monies to the Receiver- General of the Inland 
Revenue, or to such person as the said Commissioners 
shall appoint or authorise to receive the same ; and in 
case such officer shall neglect or refuse to furnish such 
account, or to pay over any of the monies so received by 
him as aforesaid, he shall be liable to be proceeded 
against in the manner directed by the eighth sectioa of 
an Act passed in the session of parliament holden in the 
thirteenth and fourteenth years of the reign of Uer 
i3&i4Vict. present Majesty, intituled, An Act to repeal certain 
c- w. Stamp Duties, amd to gra/nt others in lieu thereof, and 

to amfiend the laws relating to the Sta/mp Duties ; and 
the said Commissioners shall, upon request, and pro- 
duction of the receipt herein-before mentioned, cause 



lAW OF EVIDENCE. 25 

such documents to be stamped with the proper stamp stamping 

. e> ,x '^ 'J ir 'J document* 

or stamps in respect of the sums so paid as aforesaid : ^ ^ fy^g^ 
Provided always, that the aforesaid enactment shall not 
extend to any document which cannot now be stamped 
after the execution thereof, on payment of the duty 
and a penalty. 

No provision is made, it will be observed, for the return 
of the money, in the event of the judge at the trial having 
wrongly determined that the instrument was insufficiently 
stamped, and the stamp duty and penalties having been 
thereupon paid by the party producing the document. 
It would seem that the payment, at the trial, will operate 
as a bar to any subsequent objection, or application 
to the court for the return of the money, and that if the 
party tendering a document in evidence relies on its 
sufficiency, he will be compelled, on the judge deciding 
that it is insufficient, to withdraw it, and make its rejection 
the ground of a subsequent application for a new trial. 

The language of the proviso, "that the aforesaid 
enactment shall not extend to any document which 
cannot now (t. e, at the time of the passing of the Act) be 
stamped after the execution thereof on payment of the 
duty and a penalty," is calculated, on close examination, 
to lead to embarrassment. It is evident that the intention 
was to except all documents, other than those which 
there is power to get stamped at the period of the trial, 
when the defect is discovered; but as there are many 
instruments, which may.'be stamped within a certain time 
after the execution thereof, either on payment of the 
duty only, or on payment of the duty and a penalty, but 
which nevertheless cannot be stamped at any time after- 
wards, it is evident that the proviso is too narrow. 

The difficulty, however, which might otherwise arise, is 
avoided by considering the two sections without reference 
to this proviso ; and it is only to give a reasonable con- 
struction to them to hold, that they only. apply to the 
case where provision is made for curing the omission 
or defective stamping by payment of a penalty. The 
documents " which cannot now be stamped after the 
execution thereof on payment of the duty and penalty,** 
and which are, therefore, not affected by these provisions, 
are bills of exchange, promissory and other notes, drafts, 
or orders (31 Geo. III., c. 25, s. 19) ; acquittances on 
the payment of money receipts, discharges (35 Geo. 
III. c. 55, 8. 11). ; polices of insurance and a letter or 
power of attorney, &c. under 7 Vict, c. 21. 



26 THE COMMON LAW PBOCEDURE ACT, 1854. 



No document 
under thU 
Acttorequire 
a stamp. 
No new trial 
for ruling 
as to stamp. 



30. No document made or required under the pro- 
visions of this Act shall be liable to any stamp-duty. 

31. No new trial shall be granted by reason of the 
ruling of any judge that the stamp upon any document 
is sufficient, or that the document Joes not require a 
stamp. 

Introduction, p. Ixxix. 



Error may 
be brought 
on a special 
case. 



[ERROR ON A SPECIAL CASE.] 

32. Error may be brought upon a judgment upon a 
special case in the same manner as upon a judgment 
upon a special verdict, unless the parties agree to the 
contrary ; and the proceedings for bringing a special 
case before the Court of Error shall, as nearly as 
may be, be the same as in the case of a special 
verdict; and the Court of Error shall either affirm 
the judgment or give the same judgment as ought 
to have been given in the court in which it was 
originally decided, the said Court of Error being 
required to draw any inferences of fact from the facts 
stated in such special case which the court where it 
was originally decided ought to have drawn. 

Error may be brought on a special case, ** unless the 
parties agree to the contrary. If, notwithstanding 
such agreement, error is brought, the proceedings in 
error will be quashed ; and this whether the agreement 
be express {Camden Y,Edie, 1 H. Bl. 21) ; or implied, as if 
for instance, the parties have agreed to be bound by the 
judgment of the court below. {JBroum v. Granville^ 2 
Dowl. 796. Garrard v. 2VcA, 8 C. B., 255, where the 
cases are collected). Costs are payable in all cases 
on quashing proceedings in error. 

A special case may be stated under the 3 & 4 Will. IV., 
c. 42, s. 25, which enables the parties " in any action or 
information after issue joined, by consent and by order 
of a judge, to state the facts of the case in the form of a 
special case for the opinion of the court, and to agree that 
a judgment shall be entered for the plaintiff or defendant^ 
by confession in nolle prosequi immediately after the 
decision of the case, or otherwise, as the court may think 
fit, and judgment shall be entered accordingly." 

A special case may also be stated under the '* Common 
Law Procedure Act, 1852," which enacts (sec. 46) that 
" the parties may, after a writ issued, and before judg- 
ment, by consent, and order of a judge, state any 



r 

I 

1 



ERBOB ON A SFEOIAL CASE. 27 

question or questions of law in a special case for the Jsyror (m a 
opinion of the court without any pleadings." And (sec 47) ^P**** ""*• 
that " the parties may 4$nter [ into an agreement in 
writing, that upon the judgment of the court being 
given in the affirmative or negative of the question or 
questions of law raised by such special case, a sum of 
money (fixed by the parties, or to be ascertained by the 
court, or in such manner as the court may direct) shall 
be paid by one of such parties to the other of them, either 
with or without costs of the action ; and the judgment 
of the court may be entered for such sum as shall be so 
agreed or ascertained, with or without costs, as the case 
may be, and execution may issue upon such judgment 
forthwith, unless otherwise agreed, or unless stayed by 
proceedings in error." 

By sec. 18 it was enacted that, " in case no agreement 
shall be entered into as to the costs of such action, the 
costs shall follow the event, and be recovered by the 
successful party." 

In actions of ejectment also, (Common Law Procedure 
Act, 1852, 8. 179,) "by consent of the parties and by 
leave of a judge,, a special case may be stated according 
to the practice heretofore used." 

By sections 4 & 5 of this statute, a special case may 
be stated by an arbitrator, or by the judge trying a cause 
without a jury. 

Although s. 47 of the Common Law Procedure Act, 
1852, contained the words " unless stayed by proceedings 
in error," the Act did not confer the power to bring error 
on a special case stated under it ; and error did not lie 
on a special case stated under the 3 & 4 Will. IV., c. 42. 
This section enables a party to bring error on the judg- 
ment on a special case stated under either of these 
statutes.' A difficulty, however, still exists, although 
the proceedings for bringing a special case before the 
Court of Error are directed to be, as nearly as may be, 
the same is in the case of a special verdict. On a special 
yerdict, all the facts proved at the trial are entered on 
the roll ; but on a special case, nothing appears on the 
record at all. It is for that very reason, that, heretofore, 
error did not lie on a special case. Possibly rules will be 
made, and forms provided, for entering a special case 
upon record, as in the case of the verdict on a question 
of fact tried by consent under the Common Law Pro- 
cedure Act, 1852, s. 45. The mode of proceeding to 
error is- regulated by the Common Law Procedure Act, 
1852, 88. 146-167. 



28 THB COMMON LAW PROCEDURE ACT, 1854. 

Grounds to 33. In every rule nisi for a new trial or to enter a 
ruie^SSi^fo" ^®"*^c' ^^ nonsuit, the grounds upon which such rule 
new trial, shall have been granted shall be shoitly stated 
therein. 

Hitherto no record has been preserved of the grounds 
on which an application was made for a new trial, except 
in the notes of the judges who formed the court when 
the rule was moved for. The rule nisi disclosed nothuig ; 
and the counsel for the opposite party, unless he antici- 
pated the application, and happened to be in court when 
It was made, must have found out as best he might the 
reasons, of which he was to demonstrate the fallacy. 
This will no longer be the case. In showing cause, the 
grounds on which the rule was obtained need alone be 
combated, otherwise there would be no use in stating 
them in the rule. 

In some cases, applications to set aside proceedings on 
the ground of irregularity for instance, a rule nisi 
cannot be supported or made absolute upon a ground 
different from that stated therein {Smith v. Clark, 2 DowL 
218. I>oe d. Fish v. Macdonnell, 8 Dowl. 488). The court, 
in other cases, and especially applications for a new trial, 
has not hitherto been bound by the terms of the rule, but 
has moulded it to meet the justice of the case (Bate v. 
Kensey, 1 C. M. & E. 38. Ihe v. Lord, 7 Ad. & El. 610. 
ffiggins v. Nicholls, 7 Dowl. 551). The grounds on which 
a rule nisi was granted, were not in these cases specified 
in the rule itself. They must now be set forth, so that 
the courts may see fit to allow the rule to be made abso- 
lute only on the grounds on which it was obtained. 

On an appeal under the following sections, the appel- 
lant will, doubtless, be confined to the grounds stated in 
the rule nisi. The grounds on which the rule is granted 
are to be stated in the rule. If the rule be refused, there 
is also an appeal against the refusal (s. 34) ; and it would 
appear, that the appellant will, in the latter case also, be 
confined to the grounds stated in his application to the 
court below, as ** the judgment objected to" is to be set 
forth in the appeal case (s. 39). 



[APPEAL ON MOTIONS TO ENTER A VERDICT 
OR NONSUIT, OR FOR A NEW TRIAL.] 

34. In all cases of rules to enter a verdict or non- 
suit upon a point reserved at the trial, if the rule to 
show cause be refused or granted and then dbcharged 



APPEAL ON MOTIONS. 29 

or made absolute, the party decideii against may if niie nisi 

appeal. party may 

This section is evidently framed, as, indeed, it was ^PP^** 
intended, to give an appeal where points of law were 
reserved on a trial by jury (Introduction, p. xlv). There 
seems to be no reason, however, why leave to enter a 
verdict or a nonsuit should not be reserved in the case of 
a trial by a judge or the court under s. 1. 

The Court of Queen's Bench is to be the Court of 
Appeal, for the purposes of this section, in reference to 
motions for new trials, or to enter verdicts or nonsuits, 
which were previously made to the judges of the respec- 
tive courts of common pleas at Lancaster and court of pleas 
at Durham (s. 102, post). 

35. In all cases of motions for a new trial upon the Appeal upon 
ground that the judge has not ruled according to law, ^^!^ 
if the rule to show cause be refused, or, if granted, be a.\S^^^ 
then discharged or made absolute, the party decided 
against may appeal, provided any one of the judges 
dissent from the rule being refused, or, when granted, 
being discharged or made absolute, as the case may be, 
or, provided the court in its discretion think fit that an 
appeal should be allowed ; provided, that where the 
application for a new trial is upon matter of discretion 
only, as on the ground that the verdict was against the 
weight of evidence or otherwise, no such appeal shall 
be allowed. 

The reasons which have led to this enactment (as well 
as that immediately preceding) are stated in the Intro- 
duction, p. xlvi. It will be observed that there are still 
many cases, in which a new trial may be moved for, but 
in the granting or refusing of which, the decision of the 
court will not be subject to appeal. 

It would not seem to be necessary, that the ruling of 
the judge should have been objected to at the trial itself, 
or that a note of the objection, if made, should be taken 
by the judge, as in the case of leave being reserved to 
move for a nonsuit, or to enter a verdict. 

This section, like the preceding, seems framed to meet 
the case of a motion for a new trial, after a trial by jury. 
It is especially provided that where a new trial is moved 
for, on the ground of the verdict being against the wei^t 
of the evidence, an appeal shall be allowed, and the 
verdict of a judge of the court, under s. 1, cannot be 
questioned on the ground of its being against the weight 



30 THE COMMON ULW PROCEDURE ACT, 1 854. 



Courts of 
error lobe 
courts of 
appeal 

Notice of 
appeal. 



B.U1. 



of evidence. Bat as all the other proceeding of a trial 
by jary are to be applicable to a trial by a judge or by 
the court, this section (like that immediately preceding) 
would seem to apply to a motion for a new trial, after a 
trial by tiie court or a judge, under s. 1. 

36. The Court of Error, the Exchequer Chamber, 
and the House of Lords shall be courts of appeal for 
the purposes of this Act. 

37. No appeal shall be allowed unless notice thereof 
be ^ven in writing to the opposite party or his 
attorney, and to one of the masters of the court, within 
four days after the decision complained of, or such 
further time as may be allowed by the court or a 
judge. 

As in the case of error (Common Law Procedure 
Act, 1852, s. 149). 

38. Notice of appeal shall be a stay of execution, 
provided bail to pay the sum recovered and costs, or to 
pay costs where the appellant was plaintiff below, be 
given, in like manner and to the same amount as bail 
in error, within eight days after the decision com- 
plained of, or before execution delivered to the 
sherifT. 

In framing this section, the fact appears to have been 
overlooked, that a plaintiff in error who was also the 
plaintiff below, is not required to give bail in error 
James v. Cochrane, 9 Ex. 552; 2 Com. Law Rep, 651). 
A reasonable construction may be given, however, to the 
section, by adapting the 151st section of the Common 
Law Procedure Act, 1852, to the case of appellant plain- 
tifife as well as appellant defendants. Combining the 
two sections, it will be seen that in order that notice of 
appeal shall operate as a stay of execution, the appel- 
lant, with two, or b^ leave of the court or a judge, 
more than two sufficient sureties, such as the court 
(wherein such decision is or shall be given) or a judge 
shall allow of, must, within eight days after Uie decision 
complained of, or before execution delivered to the 
sheriff, be bound unto the party for whom any such 
decision is or shall be given, hj recognizance to be 
acknowledged in the same court, if the appellant be 
defendant below, in double the sum recovered (except 
in case of a penalty, and in case of a penalty, in double 
the sum reaUy due, and double the costs), to prosecute 
the proceedings in the Court of Appeal with effect ; and 



APPEAL ON MOTIONS. 31 

also, or if the appellant be the plaintiff below, then only 
to satisfy and pay (if the said decision be affirmed or the 
proceedings on appeal be discontinued by the appellant) 
all and singular the sum or sums of money and costs 
adjudged or to be adjudged upon the former decision, 
and all costs and damages to be also awarded for the 
delaying of execution ; and notice of such recognizance 
must be given to the respondent or his attorney. 

Bail for costs will, it seems, be required, although 
security for the costs of the action were given in the 
court below {Bcngleux v. Svoayne, Weekly Reporter, 
1853-54, 491). 

39. The appeal herein-before mentioned shall be Form of 
upon a case to be stated by the parties (and in case of *PP®*^- 
difference, to be settled by the court, or a judge of the 
court appealed from), in which case shall be set forth 

so much of the pleadings, evidence, and the ruling or 
judgment objected to, as may be necessary to raise the 
question for the decision of the court of appeal. 

This section seems to contemplate only the case of an 
appeal on a motion for a new trial under s. 35. It makes 
no express provision for a statement, in the special case, of 
the grounds on which the motion is made under s. 34, 
when the judgment of the court granting or refusing a 
rule is appealed against (see s. 33 note). This seeming 
omission may perhaps be remedied by a rule of court. 

40. When the appeal is from the refusal of the court Kuie nisi 
below to grant a rule to show cause, and the Court of 8^*°^^*^^"^ 
Appeal grant such rule, such rule shall be argued and dis^^ oL 
disposed of in the Court of Appeal. 

41. The Court of Appeal shall give such judgment judgment 
as ought to have been given in the court below ; and ^ourt of 
all such further proceedings may be taken thereupon as ^^ 

if the judgment had been given by the court in which 
the record originated. 

As in the case of a judgment after error brought, the 
judgment of the Court of Appeal may be entered by 
either party on the roll remaining in the court below, 
from which execution for the costs of the appeal wUl 
issue. See note to s. 43 post, 

42. The Court of A-ppeal shall have power to adjudge Powers of 
payment of costs and to order restitution ; and they ^^^^\g^ to 
shall have the same powers as the Court of Error in costs and 
respect of awarding process and otherwise. otherwise. 



32 THE COMMON liAW PBOCEDUBE ACT, 1854. 

Pmcen of Various powers were conferred by the Common Law 

Court <if Procedure Act, 1852, on courts of error (see ss. 156 and 
Appeal. \tyT), Referring to those sections, it will be seen that the 
Court of Appeal has power to quash the proceeding on 
appeal in all cases in which an appeal does not he, or 
where they are taken against good faith. And on the 
other hand, it may, independently of the 4 1st section, 
give such judgment and award such process, as the court 
appealed from ought to have done, without regard to the 
party appealing. 



Error opon 43. Upon an award of a trial de novo by any one 
tiSide*novo ®^ ^^® superior courts or by the Court of Error, upon 
' matter appcarinor upon the record, error may at once be 
brought ; and if the judgment in such, or any other 
case be affirmed in error, it shall be lawful for the 
Court of Error to adjudge costs to the defendant in 
error. 

A trial de novo (formerly a venire de now) is awarded on 
technical grounds, and the court can neither impose con- 
ditions on the party entitled to it nor any terms as to 
costs ( Wiiham v. Lewis, 1 Wils. 48 ; Edwards v. Brown, 
1 Tyrw. 281). A doubt has arisen whether error could 
be brought upon an award of a trial de novo without pro- 
ceeding to the new trial. This may now be done. As to 
the proceedings in error see Common Law Procedure 
Act, 1852, ss. 155, 156, 157, Reg. Gen. Hil. Term. 1853, 
64, 65, 66, 67, and 68, and Reg. Gen. Trin. Term, 1833, 
24, 25, 36, and 27. 

Upon error being brought (supposing it to lie), the 
Court of Error formeriy had no power to award costs in 
case of affirmance. This doubt has been removed by 
this section, it being clearly right that the matter should 
be at once disposed of without a second trial. 

After judgment in the Court of Error, either party is 
at liberty to enter the proceedings in error on the judg- 
ment roll remaining in the court below, from whicn 
execution for the costs in error is issued, as in ordinary 
cases. The costs in error are taxed ayd allowed as costs 
in the cause (R. G. H. T. 1853, 69 ; R. G.T. T. 1853, 
25), but the taxation can only be reviewed by the Court 
of Error. {Francis v. Doe, 7 Dowl. 193.) 



NEW TRIAL. 33 

44. When a new trial is granted, on the ground that Bayinent of 
the verdict was against evidence, the costs o'* the first J^^tSSra 
trial shall abide the event, unless the court shall other- matter of 

wise order. **ct. 

• 

A verdict may be set aside and a new trial granted if 
the defeated party was taken by surprise, or has since 
been able to procure fresh evidence, or if the verdict was 
against the weight of the evidence. It is generally re- 
quired that the judge shall express himself dissatisfied 
with the verdict, in order to get a new trial on the last 
ground. A new trial may also be obtained for erroneous 
decision or direction of the judge. 

When a new trial is granted on the ground of surprise 
or of subsequent discovery of evidence, the costs oi the 
past trial must be paid by the party obtaining the new 
trial. And hitherto when a new trial has been granted 
on the ground that the verdict was against the evidence, 
the payment of the costs of the former trial has generally* 
been made the condition on which the new trial was 
granted. See Gray on Costs, p. 381. Payment of the 
costs of the former trial was not imposed when a new 
trial was granted on the ground of judicial mistake. The 
rule has now been modified, and on a new trial being 
granted on the ground that the verdict was against the 
evidence, payment of the costs of the former trial will no 
longer be made a condition, unless in very special cases, 
which are left to the discretion of the court. 

This section will, in the particular case of a new trial 
ffranted on the ground of the verdict in the former trial 
being against the evidence, modiiy the rule of Hil. 
Term, 1853, r. 54, providing that when a new trial is 
granted without any mention of costs in the rule, the 
costs of the first trial are not to be allowed to the success- 
ful party though he succeed on the second. 



[AFFIDAVITS.] 

45. Upon motions founded upon affidavits, it shall be AiOdavits on 
lawful for either party, with leave of the court or a °*^ "•***''• 
judge, to make affidavits in answer to the affidavits of 
the opposite party, upon any new matter arising out of 
such affidavits, subject to all such rules as shall here- 
after be made respecting such affidavits. 

For the reasons for, and the anticipated effect of this 
enactment, see Introduction, p. liv. 
The rules of court relating to affidavits are those 

o 



34 THE COMMON LAW PBOCEBUSE ACT, 1854. 

Affidavits, numbered from 138 to 148 inclosiye, of the Beg. Gen. 
Hil. Term, 1853. 

The new rules contemplated by this section will pro- 
bably carry out the suggestions of the Common Law 
Commissioners^ by " the adoption of the present practice 
•* of the Court of Equity, by which affidavits are drawn 
" in the first person, and divided into paragraphs, each of 
'* which is numbered, and required to be, as far as possible, 
" confined to a distinct portion of the subject." 

It will be observed that the enactment is confined to 
motions. It does not appear, that on summonses at 
chambers, affidavits may be made in answer to the 
affidavits of the opposite party, upon new matter arising 
out of such affidavits, as in the case of motions. If this 
is an omission, it is one which may possibly be supplied 
by a rule of court. 

[PRODUCTION OF DOCUMENTS.] 

Power to 46. Upon the hearing of any motion or summons, it 

5^^ '^ shall be lawful for the court or judge, at their or his 
direct oral discretion, and upon such terms as they or he shaU 
examinations think reasonable, from time to time to order such docu- 
of witnesses, ^^jj^ ^ ^^^y ^j. jj^ ^j^y think fit to be produced, and 

such witnesses as they or he may think necessary to 
appear, and be examined viva voce, either before such 
court or judge, or before the master, and upon hearing 
such evidence, or reading the report of sucn master, to 
make such rule or order as may be just. 

Proceedings 47. The court or judge may, by such rule or order, 
mlonOT^ or any subse(juent rule or order, command the attend- 
examination, ance of the Witnesses named therein, for the purpose of 
being examined, or the production of any writings or 
other documents, to be mentioned in such rule or order, 
and such rule or order shall be proceeded upon in the same 
manner, and shall have the same force and effect as a rule 
of the court under an Act passed in the first year of the 
reign of His late Majesty, King William the Fourth, 
1 W. IV., c. intituled An Act to enable Courts of Law to order the 
^* Examination of Witnesses upon Interrogatmes or other- 

wise ; and it shall be lawful for the court, or judge, or 
master to adjourn the examination from time to time as 
occasion may reouire ; and the proceedings upon such 
examination shall be conducted, and the depositions 
taken down, as nearly as may be, in the mode now in 
use with respect to the viva voce examination^, of wit- 
nesses under the last- mentioned Act. 



WITNESSES. 35 

The reference to and substantial incorporation by this Oral 
and subsequent directions of some of the provisions of «<**»o»<if «»<- 
the Stat. 1 Will. IV., c. 22, renders it desirable to notice "****' 
that Act in some detail. 

Section 4 empowers the courts of law at Westminster 
and the several judges thereof, ** in every action depending 
in such court, upon the application of any of the parties 
to such suit, to order the examination on oath, upon 
interrogatories or otherwise, before the master or protho 
notary of the said court, or other person or persons to be 
named in such order, of any witnesses within the 
jurisdiction of the court where the action shall be 
depending) or to order a commission to issue for the 
examination of witnesses on oath at any place or places 
out of such jurisdiction, by interrogatories or otherwise, 
and by the same or any subsequent order or orders, to 
give all such directions touching time, place, and manner 
of such examination, as well within the jurisdiction of 
the court wherein the action shall be depending as 
without, and all other matters and circumstances con- 
nected with such examinations as may appear reasonable 
and just." And sec. 5 enacts, ** that when any rule or 
order shall be made for the examination of witnesses 
within the jurisdiction of the court wherein the action 
shall be depending, by authority of this Act, it shall be 
lawful for the court, or any judge thereof, in and by the 
first rule or order to be made in the matter, or any 
subsequent rule or order, to command the attendance of 
any person to be named in such rule or order for the 
purpose of being examined, or the production of any 
writings or other documents to be mentioned in such 
rule or order, and to direct the attendance of any such 
person to be at his own place of abode, or elsewhere if 
necessary or convenient so to do; and the wilful dis- 
obedience of any such rule or order shall be deemed a 
contempt of court, and proceedings may be thereupon 
had by attachment (the judge's order bein^ made a rule 
of court before or at the time of the application for an 
attachment), if, in addition to the service of the rule or 
order an appointment of the time and place of attendance 
in obedience thereto, signed hj the person or persons 
appointed to take the examination, or oy one or more of 
such persons, shall be also served together with or after 
the service of such rule or order : Provided always that 
every person whose attendance shall be so required shall 
be entitled to the like conduct money and payment for 
expenses and loss of time as upon attendance at a trial : 
Provided also, that no person shall be compelled to 
produce, under any such rule or order, any writing or 

o2 



36 THE COMMON lAW PROGSDUBB ACT, 1854. 
Oralexamu other document that he would not be compellable to 



^*j^<lf^*^ produce at a trial of the cause. 



By subsequent sections power is given to remove 
prisoners for examination, and provision made for, the 
examination of witnesses on oath, with power to the 
examiner to report to the court upon the conduct or 
absence of witnesses. (See the cases on this Act collected 
in Chitty's Statutes, vol. i, p. 1121> &c., and see Forms of 
Order, Sec, in Chitty's Forms, adapted to the * Common 
Law Procedure Act, 1852/ p. 214. 

With respect to costs, the stat. 1 W. IV., c. 22, s. 9, enacts 
" that the costs of every rule or order to be made for the 
examination of witnesses under any commission or 
otherwise by virtue of this Act, and of the proceedings 
thereupon shall" (except in the case of writs or 
commissions to pudges, &c., in India and the colonies in the 
case of actions in the common law courts of this country, 
which are left to the discretion of the court,) ** be costs 
in the cause, unless otherwise directed, either by the 
judge making such rule or order, or by the judge before 
whom the cause may be tried, or by the court." (See fur- 
ther, as to the costs, s. 57, post, and Oray on Costs, p. 363.) 

As to the admissibility of such depositions in evidence 
see sec. b5,post. 

As to obtaining the attendance of witnesses residing in 
Ireland or Scotlimd, see Appendix, post, p. 77. 

[EXAMINATION OF UNWILLING WITNESSES.] 

£zaminaUon 48. Any party to any civil action or other civil pro- 
wholreSie needing in any of the superior courts, requiring the 
to make an affidavit of a person who refuses to make an affidavit, 
affidavit. may apply by summons for an order to such person to 
appear and be examined upon oath before a judge or 
master, to whom it may be most convenient to refer 
such examination, as tp the matters concerning which 
he has refused to make an affidavit ; and a judge may, 
if he think fit, make such order for the attendance of 
such person before the person therein appjointed to take 
such examination, for tne purpose of being examined 
as aforesaid, and for the production of any writings or 
documents to be mentioned in such order, and may 
therein impose such terms as to such examination, and 
the costs of the application and proceedings thereon, as 
he shall think just. 

The provision in sec. 20 substituting affirmation for 
oaths in certain cases seems to extend to this case. 



DISCOVERY. 37 

49. Such order shall be proceeded upon . in like Proceedings 
manner as an order made under the herein-before men- f^^xamfna- 
tioned Act passed in the first year of the reign of His tion. 
late Majesty King William the Foarth, and the 
examination thereon shall be conducted, and the depo- 
sitions taken down and returned, as nearly as may be, 
in the mode now used on viva voce CKaminations under 
the said- Act of Parliament. 

See the note to sec. 47. 



[DISCOVERY.] 

50. Upon the application of either party to any cause Discovery of 
or other civil proceeding in any of the superior courts, documents, 
upon an affidavit by such party of his belief that any 
document, to the production of which he is entitled for 
the purpose of discovery or otherwise, is in the posses- 
sion or power of the opposite party, it shall be lawful for 
the court or judge to order that the party against whom 
such application is made, or if sucn party is a body 
corporate, that some officer to be named of such body 
corporate shall answer on affidavit, stating what docu- 
ments he or they has or have in his or their possession 
or power relating to the matters in dispute, or what he 
knows as to the custody they or any of them are in, 
and whether he or they objects or object (and if so, 
on what grounds) to the production of such as are in his 
or their possession or power ; and, upon such affidavit 
being made, the court or judge may make such further 
order thereon as shall be just. 

The object of this section is to supply an omission in 
the 14 and 15 Vic. c. 99 ; as to which, see Introduction, 
p. xvii. 

In order to make a successful application under this 
section so as to result in an order for inspection, three 
leading points must be attended to. 

1. The document must be in the ** possession or power 
of the opposite party." 
^ 2. It must relate to " the matters in dispute." 

3. It must be a document " to the production of which 
the applicant is entitled for the purpose of discovery Or 
otherwise." 

Although for the purpose of establishing a primd facie 
case, such as the opposite party will be called upon to 



38 THE COMMON LAW FBOCEDURE ACT, 1864. 

jHsomery tf answer, it vill be sofficient to show reasonable grounds 

documents, for belieying that the document is in his possession or 

power, yet on the two other points it seems the applicant 

will be required in his affidavit, to giye distinct and clear 

assurance to the court or judge. 

It appears that this section does not give parties a 
right to call for any documents, but those to the produc- 
tion of which they were preyiously entitled " for the 
purpose of discovery or otherwise," and it therefore 
becomes important to notice shortly the existing law and 
practice on this point. 

irupecHon at ^^ ^^ ^<^^S ^^^^ ^^^ practice of the courts to grant in- 
Oonmcn spection of any instrument where the holder was in the 
•Z^^**''* position of a trustee for the applicant, as when only one 

part of the instrument had been executed {Blogg v. Kent, 
6 Bing. 614; Dewmoge t. BowDerief 8 Bing. 1; JSluckv, 
Gompertz, 7 Ex. 67), or a deed executed by two parties was 
held by one of them. {Doe d, — v. Slight, 1 DowL 163.J 
In these cases tiie holder is a trustee for both parties, ana 
to this trust an assignee is subject. (Ihe d, Morris Y.JSoey 1 
M. and W. 207.) Sd inspection has been granted where 
a counterpart has been lost. (Street v. JBrovm, 6 Taunt 
302 ; see also Woodcock y. Wortkington, 2 Y. and J. 4 ; 
Travis v. CoUins, 2 Cr. and J. 625 ; I^eale v. Stoind, 2 Cr. 
and J. 278.) So an agent has been compelled to grant in- 
spection of books to the principal (Jones v. Palmer, 4 DowL 
446) ; an attorney to the client {Evans Y.Dekgal, 4 DowL 
874) ; a member of a provisional committee of the sub* 
scribers' arrangement to an allottee. {Steadman v. Arden, 
15 M. and W. 589.) 

But unless the holder is in this position of trustee for 
the applicant, inspection is refused. Thus inspection was 
refused to the plaintiff, of a partnership deed which he 
had refused to execute, in a suit by him for a breach of 
the agreement to take him into partnership, as he was no 
party to the deed {Eatcliffe v. Bleashy, 3 Bing. 148). 
So inspection of letters, redelivered by the defendant to 
the plaintiff, and which he alleged contained a release of 
his promise, was refused, the plaintiff not being a trustee. 
{Qoodliffy, FuUer, 14 M. and W. 4.) 

The party requiring inspection must have been a party 
to the instrument. (Smith v. Winter, 3 M. and W. 309 ; 
Lawrence v. Hooker, 5 Bing. 6 ; Cocks y. Nash, 9 Bing. 
723.) 

Inspection is granted to enable a party to frame his 
pleadmg, or for supporting his action or defence, as the 
case may be, though the document is not declared upon 
(Steadman v. Arden, sup.). It is refused when sought for 
as a foundation for a plea in abatement (BecUe v. Bird, 2 



DISCOVERY. 39 

D. and B. 419), or when a8ked with a view to the dis- 
cussion of a rule for a new trial ( Wood v. Morewood, 9 
Dowl. 44) ; or when the object was to discover alleged 
forgeries {Chetwindy, Mamell, 1 B.and P. 271 ; HUdyard 
V. Smith, 1 Biug. 451) : but see Wolner v. Devereux. (9 
Dowl. 672.) So it has been decided that an allegation 
that the plaintiff procured bills by fraud, is no ground 
for an application {Threlfall y. Webster, 1 Bing. 161.) 
Where title to land is in question, inspection will not 
be given. (Pickering v. Noyes, 1 B. and C. 262.J 

Tlie last case as to title, determined on the Common 
Law jurisdiction to order inspection of any instrument in 
which the defendant has an interest, and on which the 
action is brought is Doe d. Child v. Boe, 1 E. and Bl. 279. 

By the 14 and 1.5 Vict, c. 99, s. 6, entitled '* An Act to inmection 
Amend the Law of Evidence," it is provided that ** when- J*!*^ ^* * 
ever any action, or other legal proceeding, shall hence- ,, g. **^' ^" ' 
fbrth be pending in any of the superior courts of com- 
mon law at Westminster .... such court and each of the 
judges thereof may respectively, on application made for 
such purpose by either of the litigants, compel the 
ophite party to allow the party makmg the application 
to mspect all documents in the custody, or under the 
control of such opposite party relating to such action or 
other legal proceeding ; and if necessary, to take ex- 
amined copies of the same, or to procure the same to be 
duly stamped, in all cases in which, previous to the pass- 
ing of this Act, a discovery might have been obtained by 
filmg a bill, or by any other proceeding in a court of 
equity at the instance of the party so maldng application 
as aforesaid to the said court or judge." 

Incorporating, as this section does, the rules of equity 
with^respect to a bill of discovery, it has been held that 
as the right of the plaintiff (in equity) is limited (first) 
to a discovery confined to a question in the cause, 
(secondly) to such material documents as relate to the 
proof of the plaintiff's case on the trial, and does not 
extend to the discovery of the manner in which the 
defendant's (in equity) case is to be established, or to 
evidence which relates exclusively to his case ; so the 
party applying under the 14 and 15 Vict. c. 99 (and 
consequently under the above section of the Common 
Law Procedure Act, 1854, must show (first) what is the • 
nature of the suit and of the question to be tried in it, 
(and he should also depose to his having just ground to 
maintain or defend it) ; and (secondly) the affidavit ought 
to state with sufficient distinctness the reason of the 
application, and the nature of the documents, in order 
hat it may appear to the court or judge that the 



40 THE COMMON LAW PBOCEDUBE ACT, 1854. 

Inspection qf documents are asked for, in order to enable the party 

docununts. applying to support his case, not to find a flaw in the 

case of the opponent, and also that the opponent may 

admit or deny the possession of them. {Hunt v. Hevoittf 

7 Ex. 236 ; Sneider v. Mangino, 7 Ex. 229.) 

A party is not entitled to search the other party's 
papers with a view of finding out some invalidity in the 
case put forward by him. He can inspect those papers, 
and those only, that may support the case on which he 
himself relies. {Maynery, CoUitison, 21 L. J. R. 68, Q. B. ; 
Ghlsworthy v. Norman^ 21, L. J. R. 70, Q. B. ; Scott y. 
Walker, 1 Com. L. Rep. 944.) 

Thus in ejectment, by the reversioner against the 
assignee of the lessee, the plaintiff was held entitled to 
inspect the lease, and also the assignment, but not the 
conveyance of the freehold, as that deed did not prove 
any part of the plaintiff's title to the land he sought to 
recover ; Doe d, Avery v. Langford, 1. B. C. C. 37. 

The right of a plaintiff, however, to inspection cannot 
be limited by what is necessary to make out a prima facte 
case, but extends to any deeds, which may tend to support 
or strengthen the case on the part of the plaintiff. {Coster 
V. Baring, 2 Com. L. Rep. 81 1). It is to be observed, also, 
that the rule, that one par^ has no right to inspect 
documents which make out the title of the other, does not 
apply if they also make out his own. Thus in an action 
of ejectment on title, the deeds, which constitute the title 
of the defendant, may be inspected as evidence for the 
plaintiff, if it appear upon the affidavits, that the recitals 
may tend to support his case, for instance, as to pedigree ; 
and inspection will not be refused on the mere suggestion, 
that possibly it might be made available for the purpose 
of adapting the evidence to the recitals. {Coster y. Baring, 
supra). 

When the defendant, to an action of detinue, pleaded a 
lien, in respect of a bill of costs in an action between 
third parties, the Court of Queen's Bench held {Erie J, 
dubitante), that the plaintiff was entitled to an inspection 
of the entries in the defendant's books, relating to such 
bill of costs, an an affidavit denying the plaintiff's liability 
for such bill) and that he believed the defendant's books 
would show this, and that another party only was liable ; 
but without specifying any particular books or entries. 
{Scott V. Walker, 1 Com. L. Rep. 940.) 

The leading cases in equity, on the subject of discovery, 
applicable to the rules laid down in Hunt v. Hewitt^ are 
Smith v. Duke of Beaufort (1 Hare, 507 ; 1 Phillips, 209) ; 
Bolton V. Corporation of Liverpool (1 M. & K. 88 ; 3 Sim. 
487) ; the Attorney General v. the Corporation of London, (12 
Beav. 8.) 



40fmm0^0LjtmiiM9iMUU^i^nf^9)'^0t0lf^Ki-JKlXi!)i-4>9* -^U*"* ■ i ' '^'^ f^^^ ^CI^ ■ 



DISCOVERY. 41 

Upon an order for inspection of documents, a place for 
inspection should be named. If in an action, the order 
may be made before issue joined {Roger v. Tunier^ 21 
L. J. R. 8. Ex.)- 

The opposite party may answer the affidavit by swearing 
that he has no such documents, or that they relate 
exclusively to his own case, or that he is for sufficient 
reason privileged from producing them {Hill v. Philip^ 

7 Ex. 232), or he may submit to show parts covering the 
remainder, on an affidavit that the part concealed does 
not in any way relate to the other party's case {Hvnt v. 
Sewitty sup.). 

It has been held under the 14 & 15 Vic^, c. 99, that the 
books kept by the keeper of a lunatic asylum under the 

8 & 9 Vic, c. 100, are not privileged from production, 
(^ffUl V. Philip, supra). 



[INTERROGATORIES.] 

61. In all causes in any of the superior courts, by Power to 
order of the court or a judge, the plaintiiF may, with ^^ttenin- 
the declaration, and the defendant may, with the plea, terrogatories 
or either of them by leave of the court or a judge ^ opposite 
may, at any other time, deliver to the opposite party ^^ ^' 
or his attorney (provided such party, if not a body 
corporate, would be liable to be called '^and examined 
as a witness upon such matter) interrogatories in 
writing upon any matter as to which discovery may be 
sought, and require such party, or iri the case q\ a body 
corporate, any of the officers of such body corporate, 
within ten days to answer the questions in writing by 
affidavit, to be sworn and filed in the ordinary way ; 
and any party or officer omitting, without just cause, 
sufficiently to answer all questions as to which a dis- 
covery may be sought within the above time, or such 
extended time as the court or a judge shall allow, shall 
be deemed to have committed a contempt of the court, 
and shall be liable to be proceeded against accordingly. 

The scope and object of this and the two following 
sections, have been pointed out in the Introduction, pp. 
xviii — xxii. — See the Form, of Interrogatories under the 
1 Will. IV., c. 22, Chitty's Forms, adapted to the Common 
Law Procedure Act, 1852, p. 212. See also the note to 
s. 52, post, 

52. The application for such order shall be made 

g3 



42 THE COMMON LAW PROCEDURE ACT, 1854. 



■-if ar'" 

Swing to 
terrogaie, 
and Us 
«" worney. 



Affidavits by upon an affidavit of the party proposing to interrogate, 
^"^P"^ and his attorney or agent, or, in the case of a body 
corporate, of their attorney or agent, stating that the 
deponents or deponent believe or believes that the 
party proposing to interrogate, whether plaintiff or 
defendant, will derive material benefit in thd cause 
from the discovery which he seeks, that there is a good 
cause of action or defence upon the merits, and if the 
application be made on the part of the defendant, that 
the discovery is not sought for the purpose of delay ; 
provided that, where it shall happen from unavoidable 
circumstances, that the plaintiff or defendant cannot 
join in such affidavit, the court or judge may, if they or 
he think iit, upon affidavit of such circumstances by 
which the party is prevented from so joining therein, 
allow and order that the interrogatories may be delivered 
without such affidavit. 

Some question may arise as to the extent of the power 
to interrogate, conferred by the two last sections. 
Interrogatories are to be allowed " upon any matter as 
to which discovery may be sought ;" but the party pro- 
posing to interrogate, must state his belief that he '* will 
derive material benefit in the cause from the discovery 
which he seeks." 

It seems impossible to confine the interrogatories to 
matters relating to the establishment of the case of the 
party seeking to interrogate his opponent ; for the only 
limit, which these sections impose, relates to the liability 
of the party to be called and "examined as a witness 
upon the matter." When the party could not be called 
or examined as a witness, he cannot be interrogated. 
Thus a party will have the same privileges as to con- 
fidential communications, and his attorney will not be 
allowed to disclose any matters, that he is not now 
obliged to do in the witness-box. So also no interro- 
gatories it seems will be permitted, the answers to which 
may tend to make the parties liable to any criminal 
prosecution. (^ note to section 25, ante p. 21). 

63. In case of omission, without just cause, to 
^^ answer sufficiently such written interrogatories, it shall 

toteTi-^ en y^ lawful fop i\^q court or a judge, at their or his dis- 
lowed. cretion, to direct an oral examination of the interrogated 

party, as to such points as they or he may direct before 
a judge or master ; and the court or judge may by such 
rule or order, or any subsequent rule or order, com- 
mand the attendance of such party or parties before the 



Oral ezami 
nation of 



DISCOVEBY. 43 

person appointed to take such examination, for the 
purpose of being orally examined as aforesaid, or the 
production of any writings or other documents to be 
mentioned in such rule or order, and may impose 
therein such terms a^to such examination, and the costs 
of the application, and of the proceedings thereon, and 
otherwise, as to such court or judge shall seem just. 

54. Such rule or order shall have the same force and Proceedings 

effect, and may be proceeded upon in like manner, as 2R?l.!^*i 

J j*'j*^^i •ji*^«i_r .'J rule or order. 

an order made under the said herem-before mentioned 

Act passed in the first year of the reign of His late 

Majesty King William the Fourth. 

See note to section 47, ante p. 35. 

66. Whenever, by virtue of this Act, an examination Depositions 
of any witness or witnesses has been taken before a ^Po° f^ 
judge of one of the said superior courts, or before a toSrettimed 
master, the depositions taken down by such examiner to Masters 
shall be returned to and kept in the master's office of ^^®**- 
the court in which the proceedings are pending ; and 
office copies of such depositions may be given out, and 
the depositions may be otherwise used, in the same 
manner as in the case of depositions taken under the 
herein-before mentioned Act passed in the first year of 
the reign of His late Majesty King William the i w. 4. c. 22. 
Fourth. 

66. It shall be lawful for every judge or master Examiner 
named in any such rule or order as aforesaid for taking may make 
examinations under this Act, and he is hereby required tS^^wraS!' 
to make, if need be, a special report to the court in 

which such proceedings are pending, touching such 
examination, and the conduct or absence of any witness 
or other person thereon or' relating thereto ; and the 
court is hereby authorised to institute such proceedings 
and make such order and orders upon such report as 
justice may require, and as may be instituted and made 
in any case of contempt of the court. 

67. The costs of every application for any rule or Costs of rule 
order to be made for the examination of witnesses by ^n®^^^* 
virtue of this Act, and of the rule or order and proceed- the discretion 
ings thereon, shall be in the discretion of the court or ^^ ^^ "'^"^ 
judge by whom such rule or order is made. 

These two sections follow the language of corresponding 
sections in the 1 Will. lY., c. 22. 



r"~^ 



44 THE COMMON LAW PROCEDURE ACT, 1854. 



Inspection 
by Jury, of 
parties, or 
witnesses. 



[INSPECTION 0F PREMISES AND CHATTELS.] 

68. Either party shall be at liberty to apply lo the 
court or a judge for a rule or order for the inspection 
by the jury, or by himself, or by his witnesses, of any real 
or personal property, the inspection of which may be 
material to the proper determination of the question in 
dispute ; and it shall be lawful for the Court, or a judge, 
if tney or he think fit, to make such rule or order upon 
such terms as to costs and otherwise as such court or 
judge may direct : Provided always that nothing herein 
contained shall affect the provisions of the " Common 
Law Procedure Act, 1852," or any previous Act, as to 
obtaining a view by a jury: Provided also, that all 
rules and regulations now in force and applicable to the 
proceedings by view under the said last-mentioned Act 
shall be held to apply to proceedings for inspection by 
a jury under the provisions of this Act, or as near thereto 
as may be. 

See Introduction, p. xxii. 

By section 114 of the "Common Law Procedure Act, 
1852," the former writ of view was abolished, and it was 
provided that ** whether the view is to be had by a 
common or special jury, it shall be sufficient to obtain a 
rule of the court or a judge's order, directing a view to 
be had; and the proceedings upon the rule for a view 
shall be the same as the proceedings heretofore had 
under a writ of view ; and the sheriff, upon request, shall 
deliver to either party the names of the viewers, and 
shall also return their names to the associate for the 
pui-pose of their being called as jurymen upon the trial," 
and by Reg. Gen. Hil. T. 1853, 48, "the rule for a 
view may in all cases be drawn up by the officer of the 
court, on the application of the party, without a motion 
for that purpose." Upon any application for a view 
there must be an affidavit stating the place at which the 
view is to be made. (R. G. H. T. 1853. r. 49.) The 
expenses of the view are also provided for by the same 
rule. 

It is to be observed that the provisions of the Common 
Law Procedure Act, 1852, and of the rules of court, are 
only applicable to an inspection hy the jury. 

An inspection by the party himself or his witnesses 
will of course be permitted to be made without the 
attendance of the opposite party or any one on his behalf. 
{Shaw v. Bank of England, 22 L. J. R. 210 Ex,) 



INSPECTION. 45 

A somewhat similar power to grant mspection was inspection 
conferred on the Courts of Ck>mmon Law by the Patent ^ cJuitUlt, 
Law Amendment Act, 1852, s. 42. Under that statute 
it has been held that an application to inspect the defend- 
ant's machinery may be made before the delivery of the 
declaration in an action for infringement of the plaintiff's 
patent; but such inspection will not be granted as of 
course, or without the party applying for it showing that 
the inspection is material for the purposes of the action. 
(^Amies v. Kelsey, 1 Bail. C. C. 123. Crompton J.) 

In an action for the infringement of a patent, the court 
would not, under the above section of the Patent Law 
Amendment Act, 1852, grant an order for an inspection 
of a machine upon an affidavit that the machine used by 
the defendants was the same as that for which the plaintiff 
had obtained a patent. (Shcno v. Bank of England, 22, 
L. J. R. 210 Ex.) 



59. The several courts, or any judge thereof, may Rule or order 
make all such rules or orders upon the sheriff or other J^' snmmon- 
person as may be necessary to procure the attendance ^^^"^' 
of a special or common jury for the trial of any cause 
or matter depending in such courts, at such time and 
place, and in such manner as they or he may think 
tit. 



[EXECUTION BY ATTACHMENT OF DEBTS.] 

60. It shall be lawful for any creditor who has Examination 
obtained a judgment in any of the superior courts to Sebtora* to 
apply to the court or a judge for a rule or order that debte due to 
tne judgment debtor should be orally ejtamined as to ^^ 
any and what debts are owing to him before a master 
of the court, or ^uch other person as the court or judge 
shall appoint ; and the court or judge may make such 
rule or order for the examination of such judgment 
debtor, and for the production of any books or docu- 
ments, and the examination shall be conducted in the 
same manner as in the case of an oral examination of an 
opposite party before a master under this Act. 

See Introduction, pp. 1 — liii. 

No provision la made by this section for the examina- 



46 THE COMMON I<AW PBOCEDURE ACT, 1 854. 



Judge may 
order an 
attachment 
of debts. 



tion of the debtor's debtor or garnishee. The examination 
of the latter may, however, in many cases be most material 
in order to ascertain the fact of his being indebted to the 
judgment debtor before an order can be made under 
8. 61. Possibly the court may see fit to order the appear- 
ance and examination of the garnishee under the gen^sl 
powers conferred by section 46, ante, p. 34. 

61. It shall be lawful for a judge, upon the ex-parte 
application of such judgment creditor, either before or 
after such oral examination, and upon affidavit by him- 
self or his attorney stating that judgment has been 
recovered, and that it is still unsatisfied, and to what 
amount, and that any other person is indebted to the 
judgment debtor, and is within the jurisdiction, to 
order that all debts owing or accruing from such third 
person (herein-after called the garnishee) to the judg- 
ment debtor shall be attached to answer the judgment 
debt ; and by the same or any subsequent order it may 
be ordered that the garnishee shall appear before the 
judge or a master of the court, as such judge shall 
appoint, to show cause why he should not pay the 
juagment creditor the debt due from him to the judg- 
ment debtor, or so much thereof as may be sufficient to 
satisfy the judgment debt. 

Order for 62. Service of an order that debts due or accruing 

attachment to the judgment debtor shall be attached, or notice 
town e t«. j.jjgygQf ^Q tjjg garnishee, in such manner as the judge 
shall direct, shall bind such debts in his hands. 



Proceedings 
to levy 
amount due 
from gar- 
nishee to 
Judgment 
debtor. 



. 63. If the garnishee does not forth\Kith pay into 
court the amount due from him to the judgment debtor, 
or an amount equal to the judgment debt, and does 
not dispute the debt due or claimed to be due from 
him to the judgment debtor, or if he does not appear 
upon summons, then the judge may order execution to 
issue, and it may be sued forth accordingly, without 
any previous writ or process, to levy the amount due 
from such garnishee towards satisfaction of the judg- 
ment debt. 

Judge may ^' ^^ t^® garnishee disputes his liability, the judge, 
allow Judg- instead of making an order that execution shall issue, 

toTue^-*°' ^^y ^"^®^ *^** *^® judgment creditor shall be at 

nishee. Hbert)' to proceed against the garnishee by writ, calling 

upon him to show cause why there should not be 



ATTACHMENT OV DEBTS. 47 

execution against him for the alleged debt, or for the 
amount due to the judgment debtor, if less than the 
judgment debt, and for costs of suit ; and the proceed- 
ings upon such suit shall be the same, as nearly as may 
be, as upon a writ of revivor issued under " The Com- 
mon Law Procedure Act, 1862." 

65. Payment made by or execution levied upon the Oomishee 
garnishee under any such proceeding a saforesaid shall ^^^acharged. 
be a valid discharge to him as against the judgment 
debtor to the amount paid or levied, although such 
proceeding may be set aside or the judgment reversed. 

See the form of a plea of execution executed on a 
foreign attachment in the Lord Mayor's Court of London 
in Webb v. Bwrell, 4 C. B. 287. 

66. In each of the superior courts there shall be Attachment 
kept at the master's office a debt-attachment book, and ?^J^°^ 
in such book entries shall be made of the attachment mutenof^ 
and proceedings thereon, with names, dates, and state- each court. 
ments of the amount recovered, and otherwise ; and 

the mode of keeping such books shall be the same in 
all the courts ; and copies of any entries made therein 
may be taken by any person, upon application to any 
master. 

67. The costs of any application for an attachment Costa of 
of debt under this Act, and of any proceedings arising »PPUcati<»« 
from or incidental to such application, shall be in the 
discretion of the court or a juage. 

[SPECIFIC PERFORMANCE.] 

68. The plaintiff in any action in any of the superior Action for 
courts, except replevin and ejectment, may endorse JJ"*^^™ 

3K>n the writ and copy to be served a notice that the the perform- 
aintiif intends to claim a writ of mandamus, and the ance of 
plaintiff majr thereupon claim in the declaration, either ^°**®** 
together with any other demand which may now be 
enforced in such action, or separately, a writ of manda- 
mus commanding the defendant to fulfil any duty in 
the fulfilment of which the plaintiff is personally inter- 
ested. 

See as tO this and the following sections, Imtboduction, 
pp. iv. — vii. 



48 THE OOMMON LAW PROCEDUBE ACT, 1864. 



Declanttfon 
in action for 
mandamna. 



Proceedings 
upon claim 
for manda- 
mus. 



Judgment 
and execu- 
tion. 



Form of 

peremptory 

writ. 



Many tiice qnestions may arise as to what is a <' duty 
in the fulfilment of which the plaintiff is personally 
interested." The language of s. 74 seems to point 
out, that the duties, of which performance is to be 
enforced, are such acts only as may, if necessary, be done 
by the plaintiff or a third party, at the expense of the 
defendant. 

69. The declaration in such action shall set forth 
sufficient gronnds upon which such claim is founded, 
and shall set forth that the plaintiff is personally in- 
terested therein, and that be sustains or may sustain 
damage by the non-performance of such duty, and that 
performance thereof has been demanded by him, and 
refused or neglected. 

70. The pleadings and other proceedings in any 
action in which a writ of mandamus is claimed shall be 
the same in all respects, as nearly as may be, and costs 
shall be recoverable by either party, as in an ordinary 
action for the recovezy of damages. 

71. In case judgment shall be given to the pldntiff 
that a mandamus do issue, it shall be lawful for the 
court in which sueh judgment is given, if it shall see 
fit, besides issuing execution in tne ordinary way for 
the costs and damages, also to issue a peremptory writ 
of mandamus to the defendant, commanding him forth- 
with to perform the duty to be enforced. 

Some question may arise as to whether, when a plaintiff 
claims the writ of mandamus together with any other 
demand, but fails to obtain judgment for the mandamus, 
he will be nevertheless entitled to judgment in the action. 
Unless provided for by rules, difficulties will also arise 
in that and other cases as to the right to costs under 
s. 70. 

72. The writ need not recite the declaration or other 
proceedings, or the matter therein stated, but shall 
simply command the performance of the duty, and in 
other respects shall be in the form of an ordinary writ 
of execution, except that it shall be directed to the 
party and not to the sheriff, and may be issued in term 
or vacation, and returnable forthwith ; and no return 
thereto, except that of compliance, shall be allowed, but 
time to return it may, upon sufficient grounds, be 
allowed by the court or a judge, either with or withoat 
terms. 



WWWIWWIB 



SPECIFIC PERFORMANCE. 49 ' 

73. The writ of mandamus so issued as aforesaid shall ^^^P^ 
have the same force and effect as a peremptory writ of nmndamua, 
mandamus issued out of the Court of Queen's Bench, and proceed- 
and, in case of disobedience, may be enforced by attach- ^^^^ ®°* 
ment. 

74. The court may, upon application by the plaintiff, The court 
besides or instead of proceeding against the disobedient ^^3^**? 

Sarty by attachment, direct that the act required to be be done at 
one may be done by the plaintiff, or some other person the expense 
appointed by the court, at the expense of the defendant ; SLJtl* ^^^°' 
and upon the act being done, the amount of such 
expense may be ascertained by the court, either by writ 
of inquiry or reference to a master, as the court or a 
judge may order ; and the court may order payment of 
the amount of such expenses and costs, and enforce 
payment thereof by execution. 



[MANDAMUS.] 

76. Nothing herein contained shall take away the PMrogatire 
jurisdiction of the Court of Queen's Bench to grant ^^Jj^ng 
writs of mandamus ; nor shall any writ of mandamus preserved. 
issued out of that court be invalid by reason of the 
right of the prosecutor to proceed by action for manda- 
mus under this Act. 

76. Upon application by motion for any writ of Proceedinga 
mandamus in the Court of Queen's Bench, the rule ^^S^lewStai 
may in all cases be absolute in the first instance, if the mandamus 
court shall think fit ; and the writ may bear teste, on accelerated. 
the day of its issuing, and may be made returnable 
forthwith, whether in term or in vacation, but time may 

be allowed to return it, by the court or a judge, either 
with or without terms. 

Introduction, pp. vii — ^viii. 

77. The provisions of the ** Common Law Procedure Proceedings 
Act, 1852," and of this Act, so far as they are applica- Jiv^^fSr 
ble, shall apply to the pleadings and proceedings upon mandamus. 
a prerogative writ of mandamus issued by the Court of 
Queen's Bench. 

This section will remove the doubt which has arisen, 
whether the enactments as to pleading, of ** The Common 



50 THE COMMON LAW PBOGEDUBE ACT, 1854. 

Law Procednre Act, 1852/' applied to proceedings in 
MANDAMUS. (Reg. ▼. Sadlers* Company, 1 Com. Law Rep. 
523). 



Specific de- 78. The court or a judge shall have power, if they 
^J^^J^ OP he see fit so to do, upon the application of the 
plaintiff in any action for the detention of any chattel, 
to order that execution shall issue for the return of the 
chattel detained, without giving the defendant the 
option of retaining such chattel upon paying the value 
assessed, and that if the said chattel cannot be found, 
and unless the court or a judge should otherwise order, 
the sheriff sh&U distrain the defendant by all his lands 
and chattels in the said sheriffs bailiwick, till the defend- 
ant render such chattel, or, at the option of the plaintiff, 
that he cause to be made of the defendants goods the 
assessed value of such chattel ; provided that the plain- 
tiff shall, either by the same or a separate writ of 
execution, be entitled to have made of the defendant's 
goods, the damages, costs, and interest in such action. 

Courts of equity have, from a very early period, com- 
pelled the return of specific chattels. This jurisdiction 
seems formerly to have been confined in its exercise to cases 
where the chattels were of peculiar value to the owner, 
as, for instance, heir-looms, jewellery, articles of curiosity 
or antiquity, family pictures (Fusey v. Fttsey, 1 Vem. 
273 ; Duke of Somerset v. Cookson, 3 P. Wms. 389 ; SatnOe 
V. Tancred, 1 Ves. 101 ; Fells v. Bead, 3 Ves. 71), or title- 
deeds {Brown v. Brown, 1 Dick. 62 ; Duncomhe v. Mayer, 
8 Ves, 320 ; Jackson v. Butler, 2 Atk. 306). More re- 
cently it has been laid down that the right, to be pro- 
tected in the use or beneficial enjoyment of property in 
specie, is not confined to articles possessing any peculiar or 
intrinsic value, if there be any fiduciary relation between 
the parties (Wood v. Rowcliffe, 3 Hare, 304; and see 
Lmigen v. Simpson, 1 S. and S. 600). In these cases of 
trust, the Courts of Common Law will not be able to in* 
' terfere. 

The Court of Chancery interfered in cases of detention 
of chattels, because in the action of trover, damages only 
were recovered, while in detinue, the defendant had it 
in his power, if he chose, to retain the article upon pay- 
ment of the value as assessed by the jury. The damages 
recovered in either action, although equal to the intrinsic 
value of the article detained, might be infinitely less 



DETINUE. 51 

than that at which it was estimated by the owner, so specific ddi- 
that damages might not be anything like adequate com- very of 

fensation to him for the loss. ** The Pusey Horn, the ^to***^* 
'atera of the Duke of Somerset " (observes Lord Lough- 
borough), " were things of that sort of value that a jury 
might not give twopence beyond their weight." ♦ ♦ • 
In all cases where the object of the suit is not liable to a 
compensation by damages, it would be strange if the law 
of this country did not afford any ^medy. It would be a 
great injustice if an individual cannot have his property, 
without being liable to the estimate of people who have 
not his feelings upon it. {Fells v. Read^ 3 Ves. 71.) 

The Courts of Common Law have now, after judgment 
in an action of detinue^ the same power to compel the 
return of a chattel as the Court of Chancery. 



[INJUNCTION.] 

79. In all cases of breach of contract or other claim of writ 
injury, where the party injured is entitled to maintain o^ iijunction. 
and has brought an action, he may, in like case and 
manner as herein-before provided with respect to man- 
damus, claim a writ of injunction against tne repetition 
or continuance of such breach of contract, or other 
injury, or the committal of any breach of contract or 
injury of a like kind, arising out of the same contract, 
or relating to the same property or right ; and he may 
also in the same action include a claim for damages or 
other redress. 

See Introduction, pp. xiii-xvi. 
In order to entitle a party to claim a writ of injunction, 
three circumstances must combine : — 

1. There must be a breach of contract or other injury. 

2. It must be such a breach or injury as entitles the 
party injured to maintain an action. 

3. Such action must have been commenced. 

In every respect, therefore, the powers conferred on 
the Courts of Common Law, with respect to injunction, 
are inferior to those exercised by the Court of Equity, 
and in one respect they fall short of the powers intended 
to he conferred ; for tne former Common Law Commis- 
sioners, whose recommendations were essentially adopted 
by the present, suggested that the powers to be conferred 
on the Common Law Courts should include casfes of 
threatened injury. 

It would be too wide a field to enter upon, to discuss 



52 THE COMMON LAW PBOCEDURE ACT, 1854. 



Claim qf 

vjritcfin- 

junctum. 



Fonn of writ 
of summona 
and endorse- 
ment there- 
on. 



Fonn of pro- 
ceedings and 
of Judgment. 



the yarions cases in which the writ of injnnction may be 
claimed. Its use, however, will be found chiefly in the 
following classes of cases : actions by reversioners for 
waste, such as cutting timber and breaches of covenant, in- 
cluding, of course, the various claims on farming and other 
leases ; actions for infringement of prescriptive rights and 
easements, as ways, common, water, water-courses, and 
lights ; actions for nuisances of various kinds ; and ac- 
tions for infringement of letters patent and copyrights. 

In respect of patents, the ** Patent Law Amendment Act, 
1852'* (15 and 16 Vic, c. 83, s. 42), has provided that 
'* in any action in any of Her Majesty's superior courts 
" of record at Westminster • * * for the infringe- 
" ment of letters patent, it shall be lawful for the court 
** in which such action is pending, if the court be then 
" sitting, or if the court be not sitting, then for a judge of 
" such court, on the application of the plaintiff or de- 
** fendant respectively, to make such order for an injono- 
** tion, inspection, or account, and to ^ve such direction 
** respecting such action. Injunction, inspection, and ao- 
" count, and the proceedings therein respectively, as to 
" such court or judge mav seem fit." It has been held 
that under this section the court has power to grant 
an injunction after a judgment recovered in an action, 
and accordingly after a verdict for nominal damages 
for an infringement of a patent, the court ordered the 
defendant to render an account and pay over to the 
plaintiff the profits made by him from the use of the 
plaintiff's patent, from the time he had received notice 
from the plaintiff that he was required to keep such 
account, to the time when he should cease to use the 
patent. {Holland v. Fox, Weekly Reporter, 1853-4, 
p. 558.) 

80. The writ of summons in such action shall be in 
the same form as the writ of summons in any personal 
action ; but on every such writ and copy thereof there 
shall be endorsed a notice that in default of appearance 
the plaintiff' may, besides proceeding to judgment and 
execution for damages and costs, apply for and obtidn 
a writ of injunction. 

81. The proceedings in such action shall be the 
same, as nearly as may be, and subject to the like 
control, as the proceedings in an action to obtain a 
mandamus under the provisions herein-before con- 
tained ; and in such action judgment may be given 
that the writ of injunction do or do not issue, as justice 
may require ; and in case of disobedience, such writ of 



INJUNCTION. 53 

injunction may be enforced by attachment by the court, 
or, when such courts shall not be sitting, by a judge. 

82. It shall be lawful for the plaintiff at any time after writ of in- 
the commencement of the action, and whether before Junction may 
or after judgment, to apply ex parte to the court or a forSmy 
judge for a \(Tit of injunction to restrain the defendant stage of 

in such action from the repetition or continuance of ^® **'"®- 
the wrongful act or breach of contract complained of, 
or the committal of any breach of contract or injury of 
a like kind, arising out of the same contract, or relating 
to the same property or right ; and such writ may be 
granted or denied by the court or judge upon such 
terms as to the duration of the writ, keeping an ac- 
count, givine security, or otherwise, as to such court 
or judge shall seem reasonable and just, and in case of 
disobedience, such writ may be enforced by attachment 
by the court, or, when such courts shall not be sitting, 
by a judge : Provided always, that any order for a writ 
or injunction made by a judge, or any writ issued by 
▼irtue thereof, may be discharged or varied or set aside 
by the court, on application made thereto by any party 
dissatisfied with sueh order. 

Introduction, p. xiv, note to s. 79, ante. 

[EQUITABLE DEFENCES.] 

83. It shall be lawful for the defendant or plaintiff Equitable 
in replevin in any cause in any of the superior courts ^S^^^^ 
in wnich, if judgment were obtained, he would be 
entitled to relief against such judgment on equitable 
grounds, to plead the facts which entitle him to such 

relief by way of defence, and the said courts are hereby 
empowered to receive such defence by way of plea ; 
provided that such plea shall beein with the words " for 
defence on equitable grounds, or words to the like 
effect. 

See Introduction, pp. xxiv-xxvii. As there stated, it 
would be impossible to comprise, in a short space, the 
various cases m which these important provisions will be 
available. 

Some examples, however, may be given by way of 
illustration : — 

One head under which Courts of Equity have constantly 
given relief, has been that of " accident" At law, an 



54 THE COMMON LAW FBOCEDURE ACT, 1854. 

JiquUahU executor, having once received assets of his testator, 
d^encet. cannot discharge himself under a plea of plen^ admi- 
nistravit, against a creditor seeking satisfaction out of the 
testator-s assets, either on the score of inevitable ac- 
cident, as destruction by fire, loss by robbery or the 
like, or reasonable confidence disappointed, or loss by 
any of the various means, which afford excuse to ordinary 
agents and bailees, in cases of loss without any negligence 
on their part. (7 £ast, 258.) Thus in a case where an 
executor having received assets, and paid them over to 
a co-executor for the purpose of satisfying a bond-creditor, 
who had demanded payment from such co-executor, upon 
^ the latter applying it in payment of his own simple 
contract debts, it was held that the executor, who luul 
paid him the money, could not discharge himself by the 
plea of the plen^ administravit to an action by the bond 
creditor, in equity, however, although an executor is 
liable should he unnecessarily pay over assets to his co- 
executor whereby they are embezzled or lost ( Townsend v. 
Barker, 1 Dick. 356; LangfordY. Oascoigne, 11 Ves. 333), 
yet if the payment were in discharge of a necessary duty, 
as for the purpose of satisfying creditors residing at a 
distance from the executor remitting such assets, he 
would not be liable for their loss. (Bacon v. Bacon, 5 Ves. 
331; 2 Tudor* s Leading Cases in Equity, 659, 660.) 
Again, in equity, an executor has been held not liable for 
the loss of assets occasioned by fire {Lady Croft v. Lyndsey^ 
Freem. Ch. Rep. 1), or robbery (ffoltv. Holt, 1 Ch. Ca. 191; 
Jones V. Lewis, 2 Ves. 240). In these cases an executor 
might have proceedings against him at law restrained ; 
he may now plead in bar of an action the same circum- 
stances, which would have entitled him to this relief in 
equity. On the other hand, the plaintiff may, by way of 
replication, insist upon ai^ of those circumstances, which 
in equity would have rendered the executor liable, as, for 
instance, that the payment to the executor was unneces- 
sarily made. 

The Courts of Equity also give relief against mistakes. 
Although relief will not be afforded against the legal 
consequences of anything done in ignorance of the law, 
{Marshall v. Collett, 1 Y. & C. Exch. Ca. 238 ; Great Wes- 
tern Railway Company y. Cripps, 5 Hare, 91 ; Drew, Inj, 62,) 
a court of equity will frequently give relief against the 
legal consequences of mistakes of facts. Where, for in- 
stance, a person executed a deed, in which he, by mistake, 
covenanted to pay a sum of money to another, who com- 
menced an action against him, a court of equity granted 
an injunction to restrain the action. (^Sall v. Storie, 1 S. 
& S. 210, see also Drew, on Injunct. 62.) 



EQUITABLE DEFENCES. 55 

Another very important head onder which equity giyes BquUdMe 
relief is that of fraud, both actual and constnictive. dtfenea. 
There are many cases where a court of law does not take 
ooioiizance of what is considered fraud in a court of 
equity. Where, for instance, the owner of an estate 
stands by and permits another person to expend money 
upon it, m ignorance of the owner's title, a court of equity 
will not allow him, to proceed to take advantage of his 
legal right, by ejecting, without compensation, the person 
who has made such expenditure {ffunnmg v. Ferrers, Gilb. 
Eq. Rep. 456 ; Stiles v. Cowper, 3 Atk. 83 ; Earl of 0xford*8 
Case, 1 Ch. Rep, 1 ; 2 Tudor* s L. C. in Eq. 442 ; note, p. 
456). But in such cases the defendant, it would seem, 
must still resort to a court of equity, for how can such 
&cts be pleaded as an equitable defence to an action of 
ejectment ? Although tne word *^ cause ** is used in 
s. 83, it can neyer have been contemplated, that the de- 
fendants in ejectment should be enabled to plead to the 
writ. It is clear that it is only in " personal actions" that 
an equitable defence may be set up by way of plea. 

Again, when a party has conveyed a reversionary or 
ezx>ectant interest for an inadequate value, he can set 
aside the transaction, in a court of equity, upon the ground 
that undue advantage has been taken of his position. 
QGowlandY, De Faria, 17 Ves. 20; Bawtree v. Watson, 3 
My. & K. 339 ; Edwards v. ^roume, 2 Coll. 100 ; Davies v. 
Cwjper, 5 My. & Cr. 270,) In an action against the vendor 
by the purchaser, for the amount agreed to be paid, the 
defendant may plead, that it was the sale of a reversionary 
interest at an undervalue. 

In these cases, in equity, the onus of proving the 
adequacy of the price lies upon the person dealing with 
the reversioner {Gowland v. De Faria, 17 Ves. 20). Quaere, 
whether it will be so at law? Where, however, the 
dealing with a reversionary interest is in the nature of 
a fiimily arrangement {Tweddell v. TweddeU, J. & R. 13 : 
Heron v. Heron, 2 Atk, 160 ; Wallace v. Wallace, 2 D. and 
W. 452), or the party havine a prior interest joins in the 
sale ( Wood v. Mmy, 3 Madd. 422 ; Wardle v. Carter, 7 
Sim. 490), and, according to Lord Brougham, where 
the transaction was known to the father of the rever- 
sioner, or the person from whom the spes successionis was 
entertained (Kmg ▼. Hamlet, 2 My. & K.), or if the 
transaction had been so acted upon as to alter the 
utuation of the other party in his property {lb, sed 
vide Sug. V. & P. 316, 11 Ed.), a court of equity will not 
afford relief ; and where a saJe of a reversionary or ex- 
pectant interest has taken place by auction, the purchaser 
is presumed to have given an adequate price for it (Shelly 
V. Nash, 3 Madd. 232), unless it appears that by the con- 



56 THE COMMON LAW FBOCEDURE ACT, 1854. 

s^iitdbU ditions of the sale or mode of condncting it, the interests 

dtfenaet, of the reversioner were not properly attended to (Fox v. 

Wright, 6 Madd. 111). QwBre, whether such facts can 

be set np as avoiding a plea (s. 85) to the effect above stated ? 

Where an expectant or reversioner borrows money 
upon a post-obit bond, a court of equity will set it aside 
if unreasonable, or if the price be inadequate (Curvoyn v. 
Jfilner, 3 P. Wms. 293, n. ; Peacock v. Evans, 16 Ves. 512, 
and see 1 Tudor*8 L. C. 394). Such inadequacy of price 
may, it would seem, be pleaded in bar to an action upon 
the bond. 

Upon the same prindple equity will give relief, against 
proceedJDgs at law, upon instruments obtained by undue 
influence, from persons standing in some fiduciary relation 
to the holder, as that of trustee and cestui que trust, 
guardian and ward, or any other relation in which do- 
minion may be exercised by one person over another, 
{Hugu^nvn v. Basely, I Tudor' s L. C, and note Cooke v. La- 
motte, 15 Bea, 2S4,EspeY. Lake, 10 Hare 260). It is pre- 
sumed that such relation, and the consequences which 
follow from it, may be urged in a court of law on pro- 
ceedings being now instituted upon such instruments. 

With regard to relief against forfeitures, when a for* 
feiture is sought, a plea may now be put in, which 
formerly was only available in equity, as a ground for 
staying proceedings at law. ' Thus where a lessee cove- 
nants to do or not to do certain acts, with a clause of 
re-entry for breach of the covenant, and then commits 
such breach, equity will, under some circumstances, 
relieve against the strict legal consequences of breach of 
the obligation by the party bound. So, in some cases, 
when the thing to be done, the not doing of which has 
worked the forfeiture at law, can be specifically done, so as 
to put the party bond fide and entirely in statu quo, — or the 
injury can be compensated by a sum certain, or by damages 
capable of being estimated by some certain rule of me 
court, — then equity will relieve, and there the facts 
majr now be pleaded. (Drewry on Injunctions, p. 88.) The 
junsdiction, which courts of equity assumed, to relieve a 
tenant from a forfeiture incurred by nonpayment of rent, 
upon a bill filed after an indefinite period, by payment of the 
rent due, interest and costs, was limited by the Legislature 
(4 Geo. II., c- 28) to cases where payment was made, on 
the bill being filed, within six months after judgment had 
and recovered in ejectment and execution executed 
thereon. Courts of law were, however, in the habit of 
relieving the lessee, by staying proceedings in ejectment, 
at any time before execution executed, on payment of 
arrears and costs, and in some cases giving security for 
future payments. (2, Flatt on Leases, 475.) 



EQUITABLE DEFENCES. 57 

With regard to the relation of principal cmd surety , Equitdbk 
courts of equity frequently give relief against proceedings ^enca. 
at law. Where, for instance, parties appear on the face of 
an instrument to be bound jointly and severally, as upon 
a bond, if one of them only in fact joined as surety, he 
can in equity plead that he was only a surety ; so that if 
the principal creditor had ^ven time to the debtor, he 
would be discharged in equity, although held bound at 
law, (Craythome v. Swinbwme, 4 Ves. 160, 170 ; Clinton v. 
Hooper^ 1 Ves- jun. 173, 3 Bro. C C. 201.) It is pre- 
sumed, that now such person may, in an action against 
him by the creditor, plead that he was only a surety, 
and that time was given to the principal debtor. 

The courts of law have no power of interference in 
those cases, where a person has, what is termed, an equi- 
table interest in property. Where, for instance, a tenant 
has contracted to purchase from his landlord the pro- 
perty of which he is in the occupation, if the landlord 
take proceedings in ejectment, the tenant must still resort 
to the Court of Chancery for his injunction to stay pro- 
ceedings. 

Numerous other instances might be ^ven did space 
permit All the cases will be found collected in Mr. 
Drewry's work on Injunctions. 

84. Any such matter which, if it arose before or Equitable 
during the time for pleading, would be an answer to S^^nt^*^^ 
the action by way of plea, may, if it arise after the ^*™®° * 
lapse of the period dunng which it could be pleaded, 

be set up by way of audita querela, 

85. The plaintiff may reply, in answer to any plea Equitable 
of the defendant, facts which avoid such plea upon ^^pWcation. 
equitable grounds ; provided that such replication snail 

begin with the words ** for replication on equitable 
grounds/' or words to the like effect. 

Two questions may arise under this section ; first, 
whether the plaintiff mav traverse the &cts set forth in 
the plea ? secondly y whether he can demur for want of 
equity ? The section seems to permit only a replication 
by confession and avoidance ; and it may be said, that 
if the &cts stated in the plea are denied, or the sufficiency 
of the plea itself as a defence disputed, the plaintiff s 
course is to apply to have the plea struck out under s. 86. 

Neither difficidty seems capable of being set at rest by 
a rule of court framed under s. 97, as this is a matter of 
jurisdiction which can only be defined by the Legislature. 

H 



6S THE COMMON LAW FBOCSDUBS ACT, 1854. 

Conn or 86. Provided alwa^rs, that in case it shall appear to 

J«^ ""f *^® court, or any judge thereof, that any such equitable 
eqniubie P^^ 0^ equitable replication cannot be dealt with by 
plea or repU- any court of law so as to do justice between the parties, 
c^on. jj gjjjji y^ lawful for such court or judge to order the 

same to be struck out, on such terms as to costs and 
otherwise as to such court or judge may seem reason- 
able. 

If an eqtutable plea be struck out, it would seem that 
the defendant most, as hitherto, resort to the Court of 
Cheery. 



Actions OD 
lost inatna- 
ments. 



Jarifldictioa 
uiider.Ship- 
owners' Act 



63. O. 3. c. 
159. 



87. In case of any action founded upon a bill of 
eichanffe or other negotiable instrument, it shall be 
lawful for the court or a judge to order that the loss of 
such instrument shall not be set up, provided an indem- 
nity is given, to the satisfaction of the court or judge, 
or a master, aeainst the claims of any other person upon 
such negotiable instrument 

The loss of a negotiable bill, given on account of a 
debt, is an answer to an action for the debt, as well as 
to one on the bill {Oowe v. Cky, 9 Ex. 604) ; aliter^ if 
the bill or note be net negotiable. ( Wain v. BaUey^ 10 
Ad. and EL 606.) 

The defence can only be raised under a plea aUej^ng 
the fact {Chamhy v. Orvndey, 2 Com. Law Kep. 822)1 
Such a plea may, therefore, be struck out on an in- 
demnity being given. 

88. The superior courts, or any judge thereof, may, 
upon summary application by rule or order, exercise 
such and the like jurisdiction as may, under the provi- 
sions of an Act of Parliament made and jMissed m the 
fifty-third year of the reign of his Ms^sty King Greoige 
the Third, intituled <* An Act to limit the Bewpai^ 
tibUity of Shipovmen in certain coMe^** be exercised by 
any court of equity. 

'* The Merchant Shippinff Repeal Act, 18&4 (17 and 18 
Vic, c. 120), passed Utk August 1854," [the day before 
The Common Law Prooedure Act, 1854J, and which is 
entitled, '* An Act to Repeal certain Acts and parts of 
Acts relating to Merchant Shipping, and to continue 
certs^ provisions in the said Acts,*' with the ezeeption 



SHIFOWNfiBS' ACT. 59 

of SQoh pTOTisions as are thereinalter expressly stated to 
be intended to come into operation immediately after 
the passing thereof, comes into operation at the same 
time as ** The Merchant Shipping Act» 1854,'' (s. 3), that 
is to say, on the first day of May, 1855.* 

The fourth section of the statute provides that there 
shall be thereby repealed : — 

The several Acts and parts of Acts set forth in the 
first schedule thereto, to the extent to which such Acts 
or parts of Acts are therein expressed to be repealed. 
The 53 Geo. III. c 159, <' An Act to limit the luibility 
of shipowners in certain cases,'* }b mentioned in the 
first schedule, and the extent of vepesX is stated to be 
" The whole Act." 

The fourteenth section of " The Merchant Shipping 
Bepeal Act, 1854,*' is in the following terms :^" The 
' provisions contained in the ninth part of * The Mer- 
chant Shipping Act, 1854,' shall come into operation at 
<< the same time as if the same were herein repeated, and 
were hereby expressed to be intended to come into 
operation immediately after the passing of this Act ; 
and the following Acts, that is to say, the Act of the 
seventh year of King George the Second, chapter fifteen, 
•* the Act of the twenty-sixth of King George the Third, 
* chapter eighty-six, and the Act of the fifty-third year 
** of King George the Third, chapter one hundred and 
** fifty-nine, shall be considered as repealed immediately 
" after the passing of this Act." 



« 



it 
tt 



89. Any person who shall, upon any examination False evi- 
upon oath or affirmation, or in any affidavit in proceed^ denoe. 
ings under this Act, wilfully and corruptly give false 
evidence, or wilfully and corruptly swear or affirm 
anything which shall be false, being convicted thereof, 

shall be liable to the penalties of wilful and corrupt 
perjury. 

90. Writs of execution to fix bail may be tested and Execution to 
returnable in vacalion.t ^ *^^ 



* Merchant Shipping Act, 1854, s. 3. 

t This provision might have been usefully extended to 
writs of subpoena, which must be tested in term. It is 
nothing unusual for a writ of subpoena to be tested of a 
term, preceding th^ date of the writ of summons. 

h2 



60 THE COMMON lAW PBOGEDURE ACT, 1854. 

This section repeals Be^. Gen. Hil. Term, 1853, 74* 
in BO far as it relates to writs of ca, sa, to fix bail, being 
made returnable on a day certain m term. The writ 
must still be made returnable on a day certain. Pro- 
ceedings to outlawry could not be founded on a ca, sa, 
returnable ** immediately after the execution thereof" 
(Levy T. Homer 5 Ex. 518) for an obvious reason, which 
equsdly applies to a writ of ca, sa, to fix bail. 

This section leaves untouched Reg. Gen. Hil. Term., 
1853, 75, which requires that a writ of capias ad satis- 
faciendum to fix bail shall have eight days between the 
teste and return, an^ must, in London or Middlex, be 
entered four clear days in the public book at the sherifTs 
office. 



Scire facias 91. Proceedings against executors upon a judgment 
^^ ^°^^^ of assets in/uturo may be had and taken in the manner 
futurv *" provided by "The Common Law Procedure Act, 
1852," as to Writs of Revivor. 

If on a plea of plene administravit, the plaintiff take 
judgment of assets quando acciderint, and assets afterwards 
come into the hands of the executor, the plaintiff must 
sue out a scire facias against the executor, before he can 
have execution, (2 Wms. Saund. 219, n. (2) ; Smith v. 
Tateham, 2 Ex. 203. 

If upon this writ of sci, fa, assets be found for part, 
the plaintiff may have judgment to recover so much 
iumiediately, and the residue of the assets tnfuturo (1 
Wms. Saund. 336 b.). As to what must be stated in the 
writ of sci, fa, on the judgment of assets infuturoy see 
Wms. Saund. 218 a. 

The proceedings on such a judgment are to be taken in 
the manner provided as to writs of revivor. The writ 
must, therefore, be directed to the party called upon to 
show cause why execution should not be awarded, and 
bear teste on the day of its issuing. After reciting the 
reason why such writ has become necessary, it must call 
upon the party, to whom it is directed, to appear, within 
eight days after service thereof, to show cause why the 
party at whose instance such writ has been issued should 
not have execution against the party to whom such writ 
is directed, and give nodce that, in default of appearance, 
the party issuing such writ may proceed to execution.* 

It must be sued out of the court in which the judg- 
ment was given ; and, as it is a judicial writ, it must 

* Common Law Procedure Act, 1852, s. 131. 



ABATEMSNT. 61 

Strictly pursue the judgment. (^Ponton y. Hale, 2 Salk. 
598. Mara v. Quin, 6 T. R. 1.) The form of the writ 
may be that of a "writ of revivor. It may be served in 
any county, and otherwise proceeded upon, whether in 
term or vacation, in the same manner as a writ of sum- 
mons. The venue in the declaration may be laid in any 
coun^; and the pleadings and proceedings thereupon 
shall be in the same as in an ordinary action."^ 

Notice in writing to the plaintiff, his attorney, or agent, 
will be a sufficient appearance.t 

By analogy to the former practice on proceedings by set. 
fa, the writ, if irregular, may be quashed at the costs of 
the plaintiff, aftec appearance {Olioerson v. LaUwry 7 Dowl. 
605). It may be amended, also, to make it correspond 
widi the record {Braswell v. Jeco, 9 East, 316), and this 
after a plea of nul tiel record {Perkins v. Petit, 1 B, and 
P. 275; Holland v.PhiUips, lO A. and E. 149, and the 
cases there referred to). 

The defendant will not be at liberty to plead to the 
declaration any matter which might have been pleaded 
or set up as a defence to the original action {Bradley v. 
Eyre, 11 M. and W. 432). Fraud, in obtaining the 
original judgment must be specially pleaded, though it 
may afford ground for moving to set aside the proceed- 
ings {Thomas v. Williams, 3 Dowl. 655 ; Dodgson v. Scott, 
2 Ez« 457.) 



92. Where an action would, but for the provisions To compel 
of "The Common Law Procedure Act, 1852," have ^^^^, 
abated by reason of the death of either party, and in mentof ac- 
which the proceedings may be revived and continued *J^ ^"1^*" 
under that Act, the aefendant or person against whom ^ ^ ' 
the action may be so continued, may apply by summons 
to compel the plaintiff, or person entitled to proceed 
with the action in the room of the plaintiff, to proceed 
according to the provisions of the said Act within such 
time as the judge shall order ; and in default of such 
proceeding, the defendant or other person against whom 
the action may be so continued as aforesaid shall be 
entitled to enter a suggestion of such default, and of the 
representative characterof the person by or against whom 
the action may be proceeded with, as the case may be, 



♦ Com. Law Proc. Act, 1852, s. 131. t Ibid., s. 133. 



62 THE COMMON LAW PBOCBDUSE ACT, 1854. 

Proceedingt find to have judgment for the costs of the action and sog- 
to compd con- gestion against the plaintiff, or against the person entitled 
cSHndmment to proceed in hisroom, as the case maybe, and in the latter 
o/ action in case to be levied of the goods of the testator or intestate. 

COM of death. 

The Common Law Procedure Act, 1852, contains, 
several provisions with respect to the effect, upon the 
proceedings in an action, of the death, ms^mage, or 
bankruptcy of any of the parties. These enactments 
were all conceived in favour of the plaintiff. [iNTao- 
DucnoN, p. Ixzxiv]. This section supplies an evident 
omission, by enabling defendants in all cases of a change 
of parties by death or otherwise, to bring the proceedings 
to a close, by compelling the person entitled to ^ on 
with the action to proceed therewith, or have a judg- 
ment of notirpros, signed against him. 

The proceedings under this flection are, it will be 
observed, to be by summons at chambers only. The 
defendant may adopt this eourse in the case of the 
death of the husband, in an action brought by a man 
and his wife, for an injury done to the wife, where the 
husband has added claims arising to him in his own tight. 
i^Comrmm Law Procedure Act, 1852, s. 40.) 

The surviving wife, in respect of claims which snrviTe 
to her, the legEd representative of the husbuid in re> 
spectof his rights of action, will be the party to be called 
upon to proceed with the action. 

In case of the death of one or more of several 
plaintiffs, or one or more of several defendants, the 
surviving plaintiff's, if the cause of action survives to 
them, are the parties to be called upon to enter a sugges- 
tion of the death {Common Law Procedure Act, 1852» a. 
136) ; which, if the death happened before issue joined, 
should be made in the issue (Far, v. Denn, 1 Burr. 362) ; 
if after issue joined on the nisi prius record. (JRex v. 
Coheuy 1 Stark. N. P. 511.) The suggestion must be en- 
tered before any furthei' proceedings can be taken {Pinkos 
Y. Starch, 5 C B. 474), and affidavits to be used in the 
cause after the death of any of the parties should be 
entitled in the names of the survivors only. {Larchm y. 
Buckle, 1 L. M. and P. 740.) 

If one of several plaintiffs or defendants die after 
judgment, execution by fi. fa, or ca, sa, may be had by or 
against the survivors. (2 Wms. Saund. 72 c.) 

In case of the death of a sole or sole surviving 
plaintiff the legal' representative is the person to be 



ABAI^ElIBNT. 68 

called npon to enter a suggestion of the de&^^CdiMnon Prooeeiingt 
Law Procedure Ask, 1862, g» 187), afld proceed with th^ tooomprfoon- 

**'"""• abandonment 

In case of the death of a sole or sole sntviving q/" action in 

defendant, the legal representatire may now call upon <:om of d«atA. 

the plaintiff to proceed {Common Law Procedure Act, 

1852, s. 138), and, in default, enter a suggestion and dgn 

judgment under this section. 

The Oommon Law Procedure Act, 1852, s. 190, provides 
that the death of a claimant or defendant, in ejectment, 
flbfUl not cause the action to abatei The enactments of 
the statute, enabling a suryiving chdmant^ or the legal 
representative of a claimant whose right does not sur- 
yive, to enter a suggestion of the death (ss. 191, 192, 
193, 194), are similar to the analogous proyisions for the 
continuance of personal actions. The same observation 
applies to the enactments providing for the case of the 
death of a sole or sole surviving defendant (ss. 195, 196, 
197, 198, 199). 

The death of either party, betweeti verdict and judg- 
ment, cannot be alleged for error, if judgment be entered 
up within two terms after verdict (Common Law Procedure 
dotf 1852, 8. 189) ; and the proceedings in actions which 
survive may, in ihe case of the death of either plaintiff 
or defendant between interlocutory and final judgment, 
be continued by or against the legal represelitative 
(/6., 8. 160). 

Practically marriage does not now caute the action to 
abate (s. 144), and the bankruptcy or insolvency of a plain- 
titf cannot be pleaded in bar, unless the assignees decline 
td continue and give security for costs (/&., s. 142). 
iTiese cases of abatement it is sufficient, therefore, merely 
to mention. 

Proceedings in error do not abate by die death of any 
of the parties to the action. Suggestions may be en- 
tered and the proceedings continued in the Court of 
Error, much in the same way as in the court below. 
(J&., ss. 161—167.) 

In case of the de&th of one of several plaintiffs in 
error, the defendant may now call on the survivors to 
enter a suggestion, and the proceedings may thereafter be 
continued against the surviving plaintiff, as if he were 
the sole plaintiff (i7>., s. 162). 

In case of the death of a sole plaintiff or sole surviving 
plaintiff in error, if Uie legal repreaentalive fails to enter 



64 THE COMMON LAW PROCEDURE ACT, 1854. 

a suffgestion of the death, which he may do {lb,, 163), 
the defendant, instead of calling upon him to do so, may 
go on to an affinnance of the judgment. The defendant 
will be obliged to revive the judgment against the represen- 
tative, in o^er to have execution. (2 YTma. Saund. 101, t.) 



ciaimaQt in 93. If any person shall bring an action of eject- 
aeooDd^ectr mgnt after a prior action of ejectment for the same 
same premises has been or shall have been unsuccessfully 

premises brought by such person, or by any person through 
JI^I^J^I^I^^ or under whom he claims, against the same defend- 
maybeor- ants, or against any person dirough or under whom 
2*J^^ 8ive he defends, the court or a judge may, if they or he 
costs. ^^ think fit, on the application of the defendant at any 
time after such defendant has appeared to the writ, 
order that the plaintiff''^ shall give to the defendant 
security for the payment of the defendant's costs, and 
that all further proceedings in the cause shall be stayed 
until such security be given, whether the prior action 
has been or shall have been disposed of by discontinu- 
ance, or by nonsuit, or by judgment for the defendant. 

The Common Law Procedure Act, 1852, s. 207, pro- 
vided, it will be recollected, that the ^ect of a judsment 
in the new action of ejectment, which it introduced, should 
be the same as that of a judgment in the old action of 
ejectment, which it abolished. 

The several courts and the judgte thereof were further 
authorized, to exercise over the new proceedings the 
jurisdiction theretofore exercised in the old action of 
ejectment, so as to ensure a trial of the title, and for all 
other purposes for which such jurisdiction might there- 
tofore have been exercised.f 

The courts, in virtue of this summary jurisdiction, 
invariably stay proceedings in a second action of eject- 
ment, brought in substance to try the same title which 
had been decided in the first action, until the costs of the 
former ejectment have been paid, {Keene d. Angel v. Angela 
6 T. R. 7409 ; Doe d. Langdon v. Langdon, 5 B. and Ad. 864.) 

* In the Common Law Procedure Act, 1852, the jdain- 
tiff in ejectment is termed the claimant, 
t Common Law Procedure Act, 1852, 8. 221. 



^^^^t^^^^t^mmmsmfo^mmes^^fBm^ 



EJECTMENT. 65 

Nor is it necessary to bring the case within the rule 
that the ejectment shall be between the same parties. 
(Doed. Hamilton y Hatherley, 2. Str. 1152; Keene d. Angel 
▼. Angela Sap.). Thos, where the son and heir, of the 
claimant in a former ejectment, brought an action for 
different premises against the same defendant, and 
daimed under the same title, proceedings were stayed ; 
and this although the claimant in the nrst action was 
discharged as an insolvent, while in custody under attach- 
ment for non-payment of such costs. {Doe d, Heighley -v. 
HarkmdylQ Ad. and El. 761.) So proceedings in the first 
action were stayed, where it appeared that the second ac- 
tion would turn upon the same question of title, which was 
decided in the first action, though different premises were 
claimed and a different person made defendant {Doe d, 
Brayne v. Bather, 12 Q. B. 941 ; see farther Arch. Pr. v. II. 
p. 1202). But the court would not stay proceedings 
until the taxed costs of a suit in equity, brought by the 
same party for the same premises, had been paid {ice d, 
Williams v. Winch, 3 B. and Aid. 602). 

The court would not compel the claimant to give 
security for the costs of the second ejectment {Doe d. Selby v. 
Alston, 1 T. R. 491). The plaintiff (». e,, claimant) may 
now be ordered to give the defendant security for pay- 
ment of his costs, and the proceedings may be stayed 
until this be done. 

An application to compel the plaintiff to give security 
for costs must, in ordinary cases, be made before issue 
joined (R. G. H. T. 1833, 22), but it can only be made 
after appearance in an ordinary action {Cole v. Beardy, 

5 Dowl. 161), and in cases under this section only after 
ai>pearance to the writ of ejectment, which, is itself a 
joinder of issue.* 

In order to have a stay of proceedings in the rule nisi, 
in an application for security for costs, a demand must 
be made to the claimant, before the court or a judge 
is applied to {Bailie v. de Beruales, 1 B. and Aid. 331). 
Two days' notice of the application must also be served on 
the claimant, (R.G.H.T. 1833,160); which notice is not 
equivalent to a demand of security. {Himtley v. BtUmer, 

6 Dowl. 633.) 



94. No writ of execution issued before the twenty- As to writs 
fourth day of October, one thousand eight hundred and f^®i?3^*^" 

-~~ — — 24th October, 

♦ Common Law Procedure Act, 1852, s. 178. ^862. 

h3 



66 THE COMMON ULW PBOCSDURE ACT, 1854. 

Bmewai of fifty-two, if unexecuted, shall remain in force for more 
««jg^o/ ea>e- tjj^n six calendar months after the twenty-fourth day of 
October, one thousand eight hundred and fifty-four, 
unless the same be renewed as herein>after mentioned ; 
but all such writs may be renewed from time to time 
in the same manner as writs issued after the twenty- 
fourth day of October, one thousand eight hundred and 
fifty-two may now be renewed under the "" Common 
Law Procedure Act, 1852," s. 124. 

Previous to 24th October, 1852, writs of execution re- 
mained in force until executed, and ereat mischief ensued 
in many ways. The Common Law Procedure Act, 1852, 
which came into operation on that date, provided that 
writs of execution should not thereafter, if unexecuted, 
remain in force for more than one year, unless renewed 
in the manner therein provided. It then enacted, that a 
writ might at any time before its expiration be renewed, 
by the party issuing it, for one year from the date of 
such renewal, and so on from time to time during the 
continuance of the renewed writ, either by being marked 
with a seal bearing the date of the day, month, and year 
of such renewal (such seal to be provided and kept for 
that purpose at the office of the masters of the court out 
of which such writ issued), or by such party giving a 
written notice of renewal to the sheriff, signed by the 
party or his attorney, and bearing the like seal of the 
court. 

This enactment did not apply to writs of execution 
previously issued, a defect whicn is now supplied by this . 
section. 

The second mode of renewal has been the one most 
resorted to in practice. To renew a writ of execution, 
prepare a notice to the sheriff, entitled of the court and 
of the cause, thus : — 

In the Common Pleas, 

(A.B., Plaintiff, 
Between < and 

{ C. D., Defendant, 

Take notice tliat this writ of Ca, 8a, has been renewed. 

Yours, ^c, 

H. J. S. 
To the Sheriff of Plaintiffs Attorney, 

[Middlesex.] 

Take this notice to the master^s office, and get it sealed 
with the renewal seal. This is done on giving a/wtec^, 
which may be in this form : — 



AMBNDMSfNT. 67 

Merifewed Writ of Ca. Sa. 
For A. B., 

against 
C. D., of , m the County of [Middussex]. 

H. J. S., Plaintifs Attorney. 
The day Of 18 , (Date of renewal.) 

Writ issued (date of irrit) 
Renewed (date of first renewal) 
Senewed (date of next renewal) 

When a writ is renewed more than once, the date of 
each renewal is required to be given on ih.e pracipe. 

When the notice is sealed with the renewal seal, leave 
it at the sheriff's o£5iee. 



95. The superior courts may appoint and hold Conrte may 
sittings either in banco, or for the trial of issues in fact Jg^^* ^^ 
by judge or juiy, at any time or times, whether in term 
or vacation, not being between the tenth of August 
and the twenty-fourth, of October. 

This section extends the power' conferred by stat. 
1 & 2 Vict. c. 32, which only enabled the courts to hold 
sittings in banco^ at the times appointed for holding 
sittings at nisi prius in London and Middlesex, for the 
purpose of disposing of business then pending and undecided. 
It was held that the court sitting in banco, under this 
statute, had no power to enlarge the time appointed for 
sending a commission to a foreign country or to alter the 
period within which an award was to be made (J)e Rossi 
V. PolhUl, 7 Scott, 836). 



[AMENDMENT.] 

96. It shall be lawful for the superior courts of com- Amend- 
mon law, and every judge thereof, and any judge "*"*• 
sitting at nisi prius, at all times to amend all defects 
and errors in any proceedings under the provisions of 
this Act, whether tnere is anything in writing to amend 
hj or not, and whether the defect or error be that of 
the party applying to amend or not: and all such 
amendments may be made with or without costs, and 
npon such terms as to the court or judge may seem fit ; 
and all such amendments as may be necessary for the 
purpose of determining in the existing suit the real 



68 THE COMMON UkW FBOCEDUBE ACT, 1854. 

Amendment, question in controversy between the parties shall be 
so made, if duly applied for. 

This section is in the same words as s. 222 of the Com- 
mon Law Precedure Act, 1852 — except that the words *' if 
duly applied for " have been added. It has been decided 
that the words of the former statute, " all such amendments 
as may be necessary for the purpose of determining in 
the existing suit the real question in controversy between 
the parties shall be made " are not imperative, and do 
not take away the discretion of the court to allow the 
amendment or not (^Rithchie v. Van Gelder, Weekly Ee- 
porter» 1853-54, 418). It does not seem that the words 
"if duly applied for" will do so: due application is 
necessary in every case in which the intervention of the 
court is sought. 

An amendment when allowed will be permitted on the 
usual terms, viz.: upon payment of costs. {Meeus v. Thellua- 
8<m, 8 Ex. 641 ; I^icket v. Jarman2 Com. Law Rep. 717.) 
But these terms will not necessarily be imposed. Thus 
in Mentzner v. Bolton (2 Com. Law Rep. 685), Alderson 
B. expressed an opinion that the declaration ought to 
have been amended at nisi prius, v}ith(mt costs. In that 
case the defendant took advantage of a mere slip in 
pleading, the plaintiff havine &iled to state the entire 
contract, which had been made between the plaintiff and 
the defendant, though he had stated the gist of it. An 
amendment at the trial will not be disallowed or allowed 
only on costs of trial, merely because the opposite party 
went down to trial, relyins on the pleading amended not 
being provable, if the variance be not substantial, and is 
necessary to determine the real question in controversy ; 
for the parties ought to contemplate the making of such amend' 
merits as are necessary for that purpose (^Bvckkmd v. Johnson, 
3 Com. Law Rep., 784) ; and per Maule, J. '* Where a 
" party makes a mere mistake in pleading, the opposite 
*' party ought to be aware, that the power of amenomenf 
** may and will be exercised ; and, if he goes down to 
" trial relying on that mistake, a mere clerical error, not 
'* material to the substance of the case, he has no reason 
" to complain of the amendment." (/6.) 

Amendments are to be made "at all times/' A 
declaration was amended during the argument of a 
demurrer in Place v. Potts, 8 Ex. 705. On a motion 
for judgment on a plea of md tiel record, the court 
allowed the record to be amended in the statement 
of the date on which judgment was signed {Noble y. 
Chapman, Weekly Reporter, 1853-54, s. 154); and an 



ABIBNDMEIVT. 69 

amendment may be made after verdict, to raise a defence 
which has arisen since the trial, as to which see Chamley 
V. Grundy, 2 Com. Law Rep, 825. 

The power of the court or judge is not confined to one 
amendment. Thus a judge at nisi prius, may amend 
the record and then re-amend if necessary, even though 
upon the first amendment, he have allowed a plea to be 
added, on which evidence has been heard and which the 
re-amendment rendered useless. {Morgan y. Pike, 2 Com. 
Law Rep., 696). 

An amendment, made at the trial, ought only to be 
made for the purpose of determining the real matter in 
controversy between the parties before the trial, and not 
any question, which may arise in the course of the trial, 
and which does not appear ever before to have been in 
controversy between the parties, in the course of the 
action. ( Wilkin v. Heed, 2 Com. Law Rep., 796.) 

Whether the matter was so in controversy is a question 
of &ct to be decided by the judge at the trial. {Ibid,) 

A count ma^ be added to the declaration, if it be 
necessary to do justice in the existing controversy. ( Taylor 
V. Shaw, 1 Com. Law Rep., 1057.) And a variance 
between the statement of the contract in the declaration, 
and the contract proved at the trial, ought (in some cases 
at least) to be amended. {Metzner v. Bolton, 2 Com. 
Law Rep. 685.) 

The defendant will not be allowed to add an entirely 
new plea (founded on the facts brought out at the trial) 
daring the trial, for otherwise no one could know what 
issue he came to try. {Chamley v. Grundy, 2 Com. Law 
Rep., 823 ; Bridger v. Gay^ Weekly Reporter, 1853-64, 
374). See Eobson v. Doyle, 2 Com. Law Rep., 673, n., where 
the power to add a plea is asserted. 

A defendant will be allowed to amend his plea, that 
by to amend a technical variance, of which the plaintiff 
most be aware when he goes down to trial. {Buckland y. 
Johnson, 2 Com. Law Rep. 785.) 

If the judge at the trial refuses to amend, qucere, if the 
court can renew his decision ? {Wilkin v. Seed, 2 Com. 
Law Rep., 796.) 

Whether the amendment would be necessary or material 
is a question of law; and though the court will not 
disallow an amendment, merely because it makes a plead- 
ing demurrable, the amendment will not be allowed if it 
be left doubtful, whether the pleading were proved in fact 
or is bad in law. (76.) 



70 THE COBtMON ULW PBOGBDUKE ACT, 1854. 

General rales 97. It shall be lawful for the judges of the said 

P*y ^ ™J^ courts, or any eight or more of them, of whom the 

y ejndges. ^jjj^^g ^j* ^^^^ ^f ^jjg j^j^j courts shall be three, from 

time to time to make ail such general rules and orders 
for the effectual execution of this Act, and of the inten- 
tion and object hereof, and for fixing the costs to be 
allowed for and in respect of the matters herein con- 
tained, and the performance thereof, as in their judg- 
ment shall be necessay or proper, and for that purpose 
to meet from time to time as occasion may require: 
Proyided that nothing herein contained shall be con- 
strued to restrain the authority or limit the jurisdiction 
of the said courts or of the judges thereof to make rules 
or orders, or otherwise to regulate and dispose of the 
business therein. 



i*«a 



Other pro- 
ceedings. 



New forms of 98. Such new or altered writs and forms of proceed- 
writs and jjigg i^^y \^ issued, entered, and taken, as may by the 
judges of the said courts, or any eight or more of them, 
of whom the chiefs of each of the said courts shall be 
three, be deemed necessary or expedient for giving 
effect to the provisions herein-before contained, and in 
such forms as the judges of such courts respectively 
shall from time to time think fit to order ; and such 
writs and proceedings shall be acted upon and enforced 
in such and the same manner as writs and proceedings 
of the said courts are now acted upon and enforced, or 
as near thereto as the circumstances of the case will 
admit ; and any existing writ or proceeding, the form 
of which shall be in any manner altered in pursuance of 
this Act, shall, nevertheless, be of the same force and 
virtue as if no alteration had been made therein, 
except as far as the effect thereof may be varied by this 
Act. 



Interpreta- 
tions of 
terms. 



[INTERPRETATION.] 

99. In the construction of this Act, the word 
** court'' shall be understood to mean any one of the 
superior courts of common law at Westminster ; and 
the word ^* judge " shall be understood to mean a judge 
or baron of any of the said courts; and the word 
" master " shall be understood to mean a master of any 
of the said courts; and the word *^ action" shall bo 



THE COMMON lAW FBOCEDUBE ACT, 1854. 71 

understood to mean any personal action in any of the 
said courts. 

The interpretadon given in this section to the word 
*• action," differs from that prescribed by the " The 
Common Law Procedure Act, 1852 ;" which enacts that 
the word *' action.' shall be understood to mean any 
personal action, brought by writ of tummonst in the superior 
courts of common law at Westminster. The question has 
not yet been raised, whether the proriiioss of the former 
Procedure Act apply to replewn, 

[COURTS OF COUNTIES PALATINE.] 

100. All the enactments and provisions of this Act provisions 
not relating exclusively to the sittinpi for trials of »i*^to 
causes or issues in fact at London or Westminster shall ^^ts^to ap- 
extend and apply to the Court of Common Pleas at ply to Court 
Lancaster, and the Court of Pleas at Durham, and yi^^i^ 
actions and prooeedings therein respectively, subject to caster and 
the following modifications: — All tne powers given by 5?^"^**J 
this act to the judges of the said superior courts of D^^^btuii. 
common law at Westminster to make general rules and 

orders shall and may be exercised by the respective 
judges of the Court of Common Pleas at Lancaster, and 
Court of Pleas at Durham, being judges of one of the said 
common law courts at Westminster, or any two of them 
respectively ; with respect to the said Court of Common 
Pleas at Lcmcaster, and Court of Pleas at Durham, 
respectively, and matters and proceedings therein 
within the jurisdiction of the same courts respectively ; 
and all powers under this Act exercisable by any one 
judge of the superior courts at Westminster shall and 
may be exercisable by one judge of the said superior 
courts of the said counties palatine, being also a judge 
of one of the said courts at Westminster, as to matters 
and proceedings in the said superior courts of the said 
counties palatine. 

101. Provided always, that all the provisions of this Provisions as 
Act applicable to masters of the said courts at West- JJSJ,^ ^ 
minster shall apply to the respective protbonotaries of courts to 
the Court of Common Pleas at Lancaster and Court of ^^^^f^' 
Pleas at Durham, and their respective deputies acting of^utiilte 
in the execution of the duties of such offices, which courts. 
acting officers respectively may singly exercise with 
reference to matters and proceedings in the last*men- 



72 THE COMMON I<AW PBOCEDUKE ACT, 1854. 

f tioned courts respectively the powers hereby given to 
the masters of the superior courts at Westminster. 

Court of 102. Provided also, as to proceedings in appeal, that 

SncS to be *^® Court of Queen's Bench, being the court of error 

the Ck)iirt of from the said Court of Common Plea3 at Lancaster, and 

pffitf ^ to°°* Court of Pleas at Durham respectively, shall also be the 

Ckyurtfl!^ court of appeal from the said respective courts for the 

purposes of this Act in reference to motions for new 

trials, or to enter verdicts or nonsuits previously made 

to the judges of the said respective Courts of Common 

Pleas at Lancaster and Court of Pleas at Durham 

respectively. 

[LAW OF EVIDENCE.] 

Enactments l^^. The enactments contained in sections nineteen, 

in 88. 19 to twenty, twenty-one, twenty-two, twenty-three, twenty- 

32 to apply four, twenty-five, twenty-six, twenty-seven, twenty- 
to every dvil . ,' . i • *» •_4'' .l' . ^ j ^u* ^ i. 

court (rf e*ght, twenty-nme, thirty, thirty-one, and thirty-two, 

jodicatore of this Act shall apply and extend to every court of civil 
^d^iffli. judicature in England and Ireland. 

QwBre as to s. 32. There are no sittings or assizes (s. 29) 
in the County Courts, Courts of Bankruptcy, or other 
inferior Courts of Record. 



Gommenoe- ^^* '^^® provisions of this Act shall come into 
ment of Act operation on the twenty-fourth day of October, in the 

year of our Lord, one thousand eight hundred and 

fifty-four. 

Her Majesty ^^^* ^^ ^^^^^ ^ lawful for Her Majesty, from time to 
may direct time, by an order in council, to direct that all or any 
ttL'^iStto^' part of the provisions of this Act, or of the rules to be 
extend to made in pursuance thereof, shall apply to all or any 
^o2^* °' court or courts of record in England and Wales ; and 
within one month after such order shall have been 
made and published in the London Gazette such pro- 
visions ancl rules respectively shall extend and apply in 
manner directed by such order, and any such order may 
be in like manner from time to time altered and 
annulled ; and in and by any such order Her Majesty 
may direct by whom any powers or duties incident to 



THE COMMON LAW FBOCEDUBE ACT, 1854. 73 

the provisions applied under this Act, or the common 
Law Procedure Act, 1852, shall and may be exercised 
with respect to matters in such court or courts, and 
may make an^ orders or regulations which may be 
deemed requisite for canying into operation in such 
court or courts the provisions so applied. 



106. In citing this Act in any instrument, document. Short title of 
or proceed!]^, it shall be sufficient to use the expres- ^^' 
sion " The Common Law Procedure Act, 1854." 



Act not to 

107. Nothing in this Act shall extend to Ireland or «»*j^^*° 
Scotland, save as aforesaid. ^t^ad? 



APPENDIX. 



( 75 ) 



APPENDIX. 



WITNESSES ACT. 

[17 & 18 Vict., cap. 34.] 

Abstract of the Statute.* 

Section 1. The Cofwrts of Law in England, or^ 
when the courts are not sitting a jvdge, may order 
process to issue to compd the attendance of witnesses, 
although such witnesses he not toithin the jurisdiction. 

Section 2. A statement must he made at the foot of 
writ, that it is issued by special order of the court or 
judge. 

Section 3. Witnesses making default may he punished 
by the courts of the country in which the process was 
served. 



* Until this statute, unless the parties chose to attend 
the trial, there was no means of obtaining the evidence of 
witnesses residing in Scotland or Ireland, but by issuing 
a Commission, under the Statute 1 Will. Iv. c. 22. 
{ante, p. 35). The provisions of this Act may be en- 
forced by the Superior Courts of Common Law at West- 
minster and Dublin, and by the Courts of Session and 
Exchequer in Scotland. Had it not been of this national 
character, its enactments would properly have formed 
part of the Common Law Procedure Act. As it is, it 
has been considered of sufficient practical importance to 
be given in an Appendix ; for there are many cases, in 
which a Commission will not now be applied for, but the 
attendance of the witnesses secured, at the trial itself, 
by a subpoena issued under this Act 



76 APPENDIX. 

Section 4. Persons are not to he ptmished if it shaU 
appear thtU' sufficient money was not tendered to pay 
expenses. 

Section 5. The Act ia not to prevent the issuing of a 
Commission to examine witnesses. 

Section 6. The provisions of the Statute a/re not to 
affect the admissibility of evidence where now receivable. 



APPENDIX. 77 



WITNESSES ACT. 

[17 & 18 Vict., c. 34.] 

An Act to enctble the Courts of Law in England, Ire- 
land, and Scotland to issue process to compel the 
attendance of witnesses out of their jurisdiction, and 
to give effect to the service of such process in a/ny 
part of the United Kingdom, [IQth JvHy, 1854.] 

Whkbbas great inconyenience arises in the adminis- 
tration of justice from the want of a power in the 
Superior Courts of Law to compel the attendance of 
witnesses resident in one part of the United Kingdom 
at a trial in another part, and the examination of such 
witnesses bj commission is not in all cases a sufficient 
remedy for such inconvenience : be it therefore enacted 
by the Queen's most Excellent Majesty, by and with 
the advice and consent of the Lords Spiritual and Tem- 
poral, and Commons, in this present Parliament as- 
sembled, and by the authority of the same, as follows : 

I. If, in any action or suit now or at any time here- 
after depending in any of Her Majesty's Superior 
Courts of Common Law at WefAminister or JhMin^ or 
the court of session or exchequer in Scotland, it shall 
appear to the court in which such action is pending, or, 
it such court is not sitting, to any judge of any of the said 
courts respectively, that it is proper to compel the 
personal attendance at any trial of any witness who 
may not be within the jurisdiction of the court in 
which such action is pending, it shall be lawful for 
such court or judge, if in his or their discretion it shall 
so seem fit, to order that a writ, called a writ of sub- 
poena ad testificandum, or of subpoena duces tecum, or 
warrant of citation, shall issue in special form, com- 
manding such witness to attend such trial wherever he 
shall be within the United Kingdom, and the service 
of any such writ or process in any part of the United 
Kingdom shall be as valid and enectual to all intents 
and purposes as if same had been served within the 
jurisdiction of the court from which it issues. 



78 APFBNDIX. 

2. Every such writ shall have at foot thereof a 
statement or notice that the same is issued by the 
special order of the court or judge, as the case may 
be ; and no such writ shall issue without such special 
order. 

3. In case any person so served shall not appear 
accordiug to the exigency of such writ or process, it 
shall be lawful for me court out of which the same 

' issued, upon proof made of the service thereof, and of 
such default, to the satisfaction of the said court, to 
transmit a certificate of such default under the seal of 
the same court, or under the hand of one of the judges 
or justices of the same, to any of Her Majesty's 
Superior Courts of Conunon Law at Westminster ^ in 
case such service was had in England^ or in case such 
service was had in ScoUcmd to the Court of Session or 
Exchequer at Edmbv/rgh, or in case such service was 
had in IreUmd to any of Her Majesty's Superior Courts 
of Common Law at DtMin ; and the court to which 
such certificate is so sent shall and may thereupon pro* 
ceed against and punish the person so having made 
default in like manner as they might have done if such 
person had neglected or refused to appear in obedience 
to a writ of subpoena or other process issued out of 
such last-mentioned court. 

4. None of the said courts shall in any case pro- 
ceed against or punish any person for having made 
default by not appearing to give evidence in obedience 
to any writ of subpoena or other process issued under 
the powers given by this Act, unless it shall be made 
to appear to such court that a reasonable and sufficient 
sum of money to defray the expenses of coming and 
attending to give evidence, and of returning from 
giving such evidence, had been tendered to such person 
at the time when such writ of subpoena or process was 
served upon such person. 

5. Nothing herein contained shall alter or afiect the 
power of any of such courts to issue a Commiasion for 
the examinatioa of witnesses out of thcdr juriadictiany 
in any case in which, notwithstanding this Act, tk^ 
shall think fit to issue such ccmmiasion. 



APPENDIX. 79 

6. Nothing herein contained shall alter or affect the 
admissibility of any evidence at any trial where such 
evidence is now by law receivable, on the ground of 
any witness being beyond the jurisdiction of the court, 
but the admissibility of all such evidence shall be de- 
termined as if this Act had not passed. 



:'1 



INDEX. 



ABANDONMENT OF ACTION : 

prooeedlngs to compel, in case of death (92),* p. 61. 

ABATEMENT OP ACTION : 

proceedings'by defendant where action before the Common Law 
Procedure Act, 1852, would haye abated (92), p. 61. 

ACCIDENT: 

relief against, by courts of equity, p. 53. 

ACCOUNT, MATTERS OF: 

power of judge to decide in a summary way, or to refer to 
arbitration (3, 6), p. 36. 

ACT: 

commencement of (104), p. 72. 
short title of (106), p. 73. 

ACTION: 

meaning of the word (99), p. 70. 

ADDITIONAL PENALTY : 

of 1/. to be paid on stamping documents at the trial (28), p. 23. 

ADDRESSES TO THE JURY : 
regulation of (18\ pp. 23, 24. 

ADJOURNMENT ; 
of trial (19), p. 14. 
power of, extends to all courts of civil judicature (103), p. 72. 

* The flgares within parentheses refer to the sections of the Statute. 

I 



82 INDEX. 

ADJOURNMENT— cofrfmwc?. 

in what cases likely to be granted, pp. 14, 15. 

of examination of witnesses by coart or judge (47), p. 34. 

ADMISSIBILITY IN EVIDENCE : 

of unstamped documents, on payment of duty and penalty 
(28, 29), pp. 23, 25. 

ADMISSION : 

may waive the necessity for calling attesting witness (26), p. 22. 

ADVERSE WITNESS : 

party producing, how iar may contradict him (22), pp. 16, 18. 

AFFIDAVIT : 

aflirmation instead of oath to (20), p. 15. 

may be made in answer to affidavits of the opposite party upon 
motions (45), p. 33. 

examination of persons refiifflng to make (48) p. 36. 

judge*8 order to compel answer on, as to documents in posses- 
sion of the deponent (50), p. 37. 

interrogatories delivered to opposite party by order of court or 
judge, to be answered by (51), p. 41. 

application for order to be made upon (52), p. 42. 

order for attachment of debts to be founded upon (61), p. 46. 

punishment for making fals6 (89), p. 59. 

AFFIRMATION: 

instead of oath, in certain cases (20), p. 15. 
penalty for making &lse (21, 89), pp. 15, 59. 

AGREEMENT : 

to refer to arbitration, may be made a rule of court (17), pp. 

12, 13. 
between master and merchant seaman must be attested, p. 22. 
as to damages and costs, where special case stated, p. 26. 

ALTERATIONS IN THE LAW OF EVIDENCE, p. 15. (Set 
Evidence.) 

AMENDMENTS : 

of defects and errors in proceedings under Act (96), p. 67. 



INDEX. 83 

AMENDMENTS IN THE LAW OF ARBITRATIQN : 

if action be commenced by one paHy after all have agreed to 

arbitration, the court or judge may stay the proceedings 

(11), p. 8. 

order may be discharged or varied, as justice may require, p. 8. 

application may be made to stay the proceedings before the 

agreement has been made a rule of court, p. 9. 
power of judge to appoint arbitrator where, in case of reference 
to a single arbitrator, the parties do not concur in the ap- 
pointment (12), p. 10. 
the like where the appointed arbitrator refuses to act (12), p. 10. 
or becomes incapable of acting (12), p. 10. 
or dies (12), p. 10. 
the like on fidlure of the parties or arbitrators to appoint au 
umpire or third arbitrator (12), p. 10. 
or where appointed umpire or third arbitrator refuses to 

act (12), p. 10. 
or becomes incapable of acting (12), p. 10. 
or dies (12), p. 10. 
power of party to. substitute a new arbiti'ator where, in case 

of a reference to two arbitrators, one dies (13), p. 11. 
the like when such arbitrator refuses to act (13), p. 11. 

or becomes incapacitated (13), p. 11. 
power to the court or judge to revoke such appointment 

(13), p. 11. 
power to two arbitrators to appoint an umpire (14), p. 1 1. 
arbitrator acting under document or compulsory order of refer- 
ence, to make award within three months after his appoint- 
ment (15), p. 11. 
unless the document or order contain a different limit of 

time (15), p. 11. 
power to the parties to enlarge time by consept (15), p. 11. 
such enlargement to be for one month, unless otherwise 

expressed (15), p. 11. 
umpire may enter on reference, if period expired (15) 
p. 11. 
where award directs the delivery of possession of land, the 
court may order the party in possession to deliver possession 
(16), p. 12. 

i2 



84 INDEX. 

AMENDMENTS IN THE LAW OF ARBITRATION— coii<iiiii«i. 
sach order to have the eSket of a judgment in ejectment 
(16), p. 12. 
eyery agreement or submission to arbitration by consent, may 
be made a rule of court (17), p. 12. 
unless agreement or submission express otherwise (17), p. 12. 
if agreement or submission provides that it may be made a rule 
of any particular court, the same to be a rule of that court 
only (17), p. 13. 
so where a case is stated in the award for the opinion of 

one of the courts (17), p. 13. 
so where document is made a rule of one court, no other 
court to have jurisdiction respecting it (17), p. 13. 

APPEAL : 

right of, where rule to enter a verdict or nonsuit upon a point 

reserved, is refused, discharged, or made absolute (34), p 28. 

so on motion for a new trial, if one of the judges dissent 

from the ruling of the majority (35), p. 29. 
or if the court think fit that an appeal be allowed (35), p. 29. 
but no such appeal where the application for a new trial is 
upon matter of discretion only (35), p. 29. 
Court of Error, Exchequer Chamber, and House of Lords, to 

be courts of, (36), p. 30. 
Court of Qucen^s Bench to be the court of appeal from the 

Palatinate Courts (102), p. 72. 
notice of (37), p. 30. 
to be a stay of execution (38), p. 30. 
form of (39), p. 30, 

rule nisi granted on, how disposed of (40) p. 31. 
judgment of court of (41), p. 31. 
powers of court of, as to costs and otherwise (42\ p. 31. 

ARBITRATION— (-Sfee also * Arbitratob * and * Awabd': 
power to court or judge to direct, before trial (3), p. 3. 
power to judge to direct, at time of trial, when issues of fiict left 

to his decision (6), p. 6. 
staying proceedings where action commenced by one party, after 

all have agreed to (11), p. 9. 



IKOEX. 85 

ARBITRATION— conWnu^d 

proceedings in case of, on fiulure of parties to appoint arbitrator 

or umpire (12, 13), p. 10. 
power to make agreement or sabmissiou to, a rule of court (17). 

ARBITRATOR : Appointment of: 

power to court or judge, before trial, to direct cause to be 

referred to (3), p. 3. 
decision of, how enforced (3), p. 3. 
power to judge, on trial of any issue of fiict by him under Act, to 

direct matters of account to be referred to, (6), p. 6. 
power to send b&ck matters to (8), p. 6. ^ 

power of judge, on failure of parties, to appoint (12), p. 10. 
or on arbitrator refusing to act (12), p. 10. 
or becoming incapable of acting (12), p. 10. 
or dying (12), p. 10. 

or on failure of parties or arbitrators to appoint an umpire, 
when at liberty to do so ( 1 2), p. 10. 
power of one party to appoint, to act alone when reference is to 
two arbitrators, and one party fails to appoint (13), p. 11. 

Power and Duties of: 
decision of the court and finding of the jury upon the allowance 
or disallowance of any particular item binding upon (4), p. 5. 
power of, to state special case (5), p. 5. 

proceedings before and power of, on reference of matters of 

account by judge at trial of any issue of fact under act (7), p. 6. 

power of, when appointed by judge, on failure of the parties or 

arbitrators, &c. (12), p. 10. 
power of two arbitrators to appoint an umpire (14), p. 11. 
within what time award must be made (15), p. 11. 

unless a different limit of time is appointed (15), p. 11- 
or time is enlarged by consent (15), p. 11. 
or by order of the court or a judge (1 5), p. 11 . 
may state a special case, p. 5. 

Award of, see * Awabd.' 

ASSESSMENT OF DAMAGES : 

on trial of issues of fact by judge (1), p. 1. 



86 IKDBX. 

ASSETS infuturo: 

proceedings against execaton on judgment of (91), p* 60. 

ASSOCIATE : 

appointment by, of proper persons to attend trial of causes 
when two courts sitting at the same time (2), p. 2. 

ATTACHMENT : 

of debts due to judgment debtor (61), p. 46. 

order for, to bind debts (62), p. 46. 

proceedings to levy amount due from garnishee to judgment 

debtor (63), p. 46. 
power to judgment creditor to sue where debt disputed (64), 

p. 46. 
discharge of garnishee (65), p. 47. 
attachment book to be kept by the masters of each court (66), 

p. 47. 
costs of application for (67), p. 47. 
enforcement of writ of mandamus by (73), p. 49* 
enforcement of ii^unction by (81, 82), p. 52. 
against witnesses disobeying special writs of subpcena, p. 71. 

ATTENDANCE OF WITNESSES: 

power to courts of law in England, Scotland, and Ireland to 
issue process to compel, p. 77. 

ATTESTATION: 

to what instruments necessary, p. 22. 

ATTESTING WITNESS : 

need not be called to prove any instrument, to the validity of 

which attestation is not requisite (26), p. 22. 
necessity for calling may be dispensed with by express admis- 
sions, p. 22. 
or by admission in the pleadings, p. 23. 

ATTORNEY: 

delivery of written interrogatories to (51), p. 41. 

AUDITA QUERELA: 

setting up equitable defence by way of (84), p. 57. 



INDEX. 87 

A.WARD: When to be made : 

to be made in three months (15), p. 11. 

unless document or order of reference contains a dif- 
ferent limit of time (15), p. 11. 
OP unless the time is enlarged by consent (15), p. 11. 
or bj court or judge, (15), p. 11. 

Enforcement of: 

within period for setting aside (10)^ p. 8. 

rule or order to deliver possession of land pursuant to award, 
how enforced (16), p. 12. 

power to make agreement or submission to arbitration by con- 
sent or rule of court (17), p. 12. 

Setting Aside: 
application for, on a compulsory reference (9), p. 7. 
notwithstanding time for, has not elapsed, award may be en- 
forced (10), p. 8. 

\WARD OF A TRIAL de novo : 

error may be brought upon (43), p. 32. 

BAIL: 

to be given on appeal (38), p. 30. 

writs of execution to fix, may be tested and returnable in vaca- 
tion (90), p. 59. 

BILL OF EXCHANGE : 

in action on, court or judge may order loss of, not to be set 
up (87), p. 58. 

BODY CORPORATE : 

to disclose documents and answer interrogatories by officer on 
their behalf (50, 51), pp. 37, 41. 

BOOK : 

of entries of monies received by officer of court at trials, of 

stamp duties and penalties (29), p. 24. 
inspection of, of adverse party, p. 40. 
kept by the keeper of a lunatic asylum, not privileged from 

production, p. 41. 



88 INDEX. 

BOOK'-ootttinued, 

order for the production of, by judgment debtor on his exami- 
nation (60), p. 45. 
debt-attachment book to be kept at the Master's Office (66> 

p. 47. 

BREACHES OF CONTRACT: 

injunction to restrain (79), p. 51. 

CAPIAS AD SATISFACIENDUM: 

Writ to fix bail, p. 59. ^ 

CASE: 

statement and determination of , as to a particular item, where 

the cause is referred to arbitration (4), pp. 4, 5. 
appeal to be upon, stated by the parties (39), p. 31. 
special power of arbitrator to state (5), p. 5. 

CAUSES. TRIAL OF: 

power for two judges to sit at the same time for (2), p. 2. 

CERTIFICATE : 

of referee of matters of account, enforceable by the same pro- 
cess of the finding of a jury (3), pp. 3, 4. 
effect of such certificate, p. 4. 
of conviction of witness for felony or misdemeanour (25), 
p. 21. 

CERTIORARI : 

question whether indictments removed by, are within the 
regulations as to the speeches of counsel, p. 14. 

CHARACTER OF WITNESS: 

cannot be impeached by general evidence of bad character (22), 

p. 16. 
nor by particular instances unless material to the issue, p. 17. 
but a conviction for felony or misdemeanor may be proved if 

the witness denies tiie fact or refuses to answer (25), pp. 17, 

21. 

CHATTELS : 

specific delivery of, in actions for the detention of (78), p. 50. 
inspection of, by the jury, parties or witnesses (58), p. 44. 



«3« 



INDEX. 89 

CITATION, WARRANT OF : 

to compel the attendance of witnesses, p. 77. 

CLAIM : 

of writ of maudamus in the declaration (68), p. 47. 
of writ of injunction in cases of breach of contract or other 
injury (79), p. 51. 

CLAIMANT : 

in second ejectment for same premises against same defend- 
ant, may be ordered to give security for costs (93), p. 64. 

CODICILS: 

must be attested, p. 22. 

COGNOVIT: 

must be attested, p. 22. 

COMMENCEMENT OF THE ACT (104), p. 72. 

COMMISSION : 

for the examination of witnesses under the 1 Will. IV. c. 22, 
p. 35. 

COMMISSIONERS OF INLAND REVENUE: 

return to be made to, of monies received at trials on account of 

stamp duties and penalties (29), p. 24. 
to cause documents to be stamped (29), p. 24. 

COMMON JURY {see * Jury'). 

COMPARISON : 

of disputed with genuine writing (27), p. 23. 

COMPULSORY REFERENCE TO ARBITRATION : 

judge may on application of either party decide matters of 
mere account in a summary way (3), p. 3. 
or refer them to an arbitrator appointed by the parties (3), 

p. 8. 
OF to an officer of the court (3), p. 3. 
or in country causes to the judge of any court (3), p. 3. 

I 3 



90 INDEX. 

COMPULSORY REFERENCE TO ARBITRATION— co»*imi6d. 
award or certificate of the referee eofbrceable as the finding of 

a jury (3), p. 3. 
jadge may by consent direct cause to be stated (4), p. 4. 

or an issue or issues to be tried (4), p. 4. 
arbitrator may state special case (5), p. 5. 
upon trial of matters of fact by judge, matters of account may 

be referred to arbitration (6), p. 5. 
proceedings to be conducted and power of arbitrator .to be as 

upon a reference by consent under a rule of court or judge's 

order (7), p. 6. 
court or judge to have power to remit matters to arbitrator (8), 

p. 6. 
applications to set aside award within seyen days of the following 

term (9), p. 7. 
if no application, award to be final (10), p. 8. 
award made on compulsory reference may be enforced after seven 

days from publication, although the time for moving to set it 

aside has not elapsed (10), p. 8. 

CONSCIENTIOUS OBJECTORS TO OATHS: 

may make solemn affirmation or declaration (20), pp. 15, 16. 

CONSENT : 

trial of questions of fact by, (1), p. I. 

agreements or subscriptions to arbitration by, may be made a 

rule of court (17), p. 12. 
statement of special case by, p. 26. 
in ejectment, p. 27. 

CONTEMPT OF THE COURT : 

proceedings against witnesses for (56), p. 43. 

CONTINUANCE : 

or abandonment of action in case of death, proceedings to 
compel (92), p. 61. 

CONTRACT : 

injunction to restrain breaches of (79), p. 51. 



INDEX. 91 

jONTRADICTION of WITNESS: 

how fu allowed to party produdng him (22), pp. 16, 17. 
by fonner inoonflistent statement (23, 24), pp. 19, 20. 
must be material to the issue, p. 13. 

by proof of preTioos conyiction of felony or misdemeanor (25), 
pp. 21, 22. 

CONVICTION OF WITNESS : 

for felony or misdemeanor, when and how proved (25) pp. 
21, 22. 

COPIES: 

of witnesses' depositions may be obtained from the masters' 

office (55), p. 43. 
of entries in debt attachment book, may be taken on application 

(66), p. 47. 

CORPORATE BODIES: 

to disclose documents and answer interrogations by officer on 
their behalf (50, 51), pp. 37, 41. 

COSTS : 

terms as to, on the reference to arbitration of matters of 
account, to be sudi as the court or judge shidl think reason- 
able (3), p. 3. 

the like on a reference on the trial of issues of &ct by a judge 
(6), p. 6. 

the like when matters remitted to the arbitrator (8), p. 6. 

of staying proceedings in action commenced after agreement 
to refer, in the discretion of the court or judge (11), p. 8. 

of the jury, a condition precedent to, adjournment of trial, p. 15. 

payable in all cases on quashing proceedings in error, p. 26. 

of special case, p. 27. 

agreement by parties as to, p. 27. 

of appeal, bail for required (38), p. 30. 

power of the Court of Appeal to adjudge payment of (42). p. 31 

Court of Error may adjudge, to the defendant in error on 
affirmance of judgment below (43), p. 32. 

of first trial to abide the event, unless otherwise ordered, when 
new trial granted on the ground that the verdict was against 
evidence (44), p. 33. 



92 INDEX. 

C08^rS— continued. 

of application and proceedings thereon for examination of 

person refusing to make affidavit, to be in the power of the 

judge (48), p. 36. 
of application and proceedings thereon, on examination of party 

omitting to answer interrogatories in the power of the court 

or judge (53), p. 42. 
of every application for the examination of witnesses and of the 

rule or order and proceedings thereon, to be in the discretion 

of the court or judge (57), p. 43. 
of inspection of real or personal property by jury, or parties, or 

witnesses, in the power of the court or judge ordering same 

(58), p. 44. 
recovery of, of suit by judgment creditor against the garnishee 

(64), p. 46. 
of application for an attachment of debts and of proceedings 

arising from or incidental thereto* in the discretion of the 

court or judge (67), p. 47. 
recovery of, in actions where a writ of mandamus is claimed 

(70), p. 48. 
execution for same (71), p. 48. 
order for payment of, of performance of act required to be done 

by writ of mandamus (74), p. 49. 
equitable plea or replication may be struck out on such terms as 

to mrt or judge may seem reasonable (85), p. 58. 
security for, by claimant in second action of ejectment (93) 

p. 64. 
of amendments, in the discretion of the court or judge (96), 

p. 67, 
rules and orders respecting, to be made by the judges <97)) 

p. 70. 

COUNSEL : 

speeches of, to the jury (18), p. 13. 

COUNTIES PALATINE i 

act extended to the courts of the (100), p. 71. 

COUNTY COURT : 

power to refer matters of account to judge of (3, G\ pp. 3, 5. 



' INDEX. 93 

« 

COURT : 

definition of (99% p. 70. 

Power of — 
trial of issnes of fact by (1), p. 1. 
power for two judges to sit at the same time for trial of causes 

pending in the same court (2), p. 2. 
power to, or judge to direct arbitration before trial (3), p. 3. 
or to direct special case to be stated (4), p. 4.. 

or an issue or issues to be tried (4), p. 4. 
power to remit matters to the re-consideration and re-determi- 
nation of the arbitrator (8), p. 6. 
to stay proceedings in action commenced by one party after all 

have agreed to arbitration (11), p. 8. 
to enlarge the term for making awards (15), p. 11. 

or order delivery of possession of land pursuant to 
award (16), p. 12. 
when agreement or submission to arbitration is made a rule of 
one court, no other court to have power to entertain any 
motion respecting the arbitration or award (17), pp. 12, 13. 
to adjourn trial (19), p. 14. 
to permit witness to make affirmation instead of oath (20), 

pp. 15, 16. 
to settle appeal on motions for new trial, &c., where the parties 

differ (39), p. 31. 
to order production of documents (46), p. 34. 

or examination of witnesses (46), p. 34. 
to compel the discovery of documents (50), p. 37. 
to allow interrogatories (51), p. 41 . 
may dispense with affidavit (52), p. 42. 
in default of answer, may order oral examination (53), p. 42. 
discretionary power as to costs (57), p. 43. 
to order the inspection of real or personal property by the jury, 
parties or witnesses (58), p. 44. 
and to make rules or orders upon the sheriff or other per« 
son to procure the attendance of a special or common 
jury (59), p. 45. 
to order the examination of judgment debtors (60), p. 45. 
discretion as to costs of application (67), p. 47. 
to order peremptory writ of mandamus (71), p. 48. 



94 INDEX. 

COVBT— continued. 

not to affect the jorisdicdon of the Queen's Bench as to 
mandamos (75), p. 49. 
to order specific deliyerj of chattels (78), p. 50. 
to grant a irrit of injunction on exparte application (82), 
p. 53. 
may discharge, vaiy, or set aside same (82), p. 53. 
to strike out equitable pleas or replications (86), p. 58. 
to prevent loss of instruments being set up as a defence 

(87), p. 58. 
jurisdiction under Shipowners' Act (88), pp. 58, 59. 
to order claimant in second ejectment to give security for 

costs (93), pp. 64, 65. 
may appoint sittings in term and vacation (95), p. 67. 
to amend errors and defects in any proceedings under Act 

(96), pp. 67-69. 
of judges, to issue new fonns of writs and proceedings (98), 
p. 70. 

JOURTS OF APPEAL, {see aho Appeal) t 

Court of Error, the Exchequer Chamber, and the House of 
Lords, to be, for the purposes of the Act (36), p. 30. 

COURTS OF CIVIL JUDICATURE : 

application of certain sections of the Act to (103), p. 72. 

COURTS OF RECORD: 

power to extend Act to (105) p. 72. 



COURT OF ERROR, see « Error." 

COURTS, COUNTY, eee « County Court.?' 

CREDIT OF WITNESS : 

cannot be impeached by general evidence of bad character 

(22), pp. 16, 17. 
but party producing witness may contradict him by other 
evidence (22), pp. 16, 17. 
or by leave of the judge prove that he has made incon- 
sistent statements (22), pp. 17, 18. 



INDEX. 95 

CREDITOR : 

proceedings by judgment, for attaching debts due from third 
persons to debtor (60 to 67.) {See Judgment Debtor.) 

CROSS-EXAMINATION OF WITNESS : 

as to former inconsistent statements (23), p. 19. 
when in writing (24), pp. 19, 20. 

DAY, COSTS OF THE : 

on adjournment of trial, p. 15. 

DEATH OF PARTIES : 

proceedings to compel the continuance or abandonment of 
action in case of (92), pp. 61-^4. 

DEBT ATTACHMENT BOOK : 
to be kept by master (66), p. 47. 

DEBTOR: 

proceedings by judgment creditor to attach debts due to (60- 
67). {See Judgment Debtor.) 

DEBTS: 

examination of judgment debtor as to, due to him (60), p. 45. 
attachment of, due to judgment debtor, and proceedings thereon 
(61-67). 

DEFECTS: 

in proceedings, amendment of (96^, p. 67. 

DECLARATION : 

in lieu of affidavit or deposition by persons entertaining con- 
scientious objections to oaths (20), pp. 15, 36. 
delivery of interrogatories with the (51), p. 41. 
claim in, of a writ of mandamus (68), p. 47 
allegations therein (69), p. 48. 

DEFENCES : 

plea of equitable, allowed (83), p. 53. 

of loss of negotiable instrument not to be set up (87), p. 58. 



96 INDEX. 

DELIVERY : 

of specific chattel, in action fur its detention (78), p. 50. 
of possession of lands or tenements in porsoance of award (16)^ 
p. 12. 

DEMURRER : 

to plea for want of equity, p. 57. 

DEPOSITIONS OF WITNESSES: 

to be returned to the master's office (55), p. 43. 

DETENTION OF CHATTELS: 

in action for, execution may issue for their ^tum (78), p. 50. 

DIFFERENCES : 

stay of proceedings in ease of, referred to arbitration (11), p. 8. 

DISCOVERY: 

of documents, application for, by affidavit, and order thereon 

(50), p. 37, 
power to parties, by order of the oonrt or a judge, to deliver 
written interrogatories to opposite party upon any matter as 
to which discovery may be sought (51), p. 41. 
application for order to be made upon affidavits of the 
party proposing to interrogate, and his attorney (52), 
p. 42, 
oral examination of parties, by order of court or judge, in 
case of omission to answer written interrogatories (53), 
p. 42. 
proceedings on such rule or order (54), p. 43. 
depositions upon such examinations to be returned to the 

master's office (55), p. 43. 
examiner may make special report to the court (56), p. 43. 
costs of rule and examination to be in the discretion of 
the court (57), p. 43. 

DISCREDIT OF WITNESS: 

how for party may discredit his own witness (22), pp. 16, 17. 
by proof of previous statements (23, 24), pp. 19, 20. 
by proof of conviction for felony or misdemeanour (25), pp. 21, 
22. 



INDEX. 97 

DISCRETION, MATTER OF: 

no appeal cm moti6n for new trial on (35), p. 29. 

DISPUTED WRITING : 

comparison of, with genoine (27), p. 23. 

DISTRAINT: 

of defendants' lands and chattels in default of retoming specific 
chattel claimed (78), p. 50. 

DOCUMENTS : 

order for the production of (46), p. 34. 

discovery of, mode of proceeding for (50), p. 37. 

stamping, at the trial (28), p. 24. 

made or required under the act exempted from stamp duty (SO), 

p. 26. 
no new trial to be granted on the grounds of the insufficiency 

of the stamp on any document received in evidence (31), p. 26. 
how Act to be cited in (106), p. 73. 

DURATION : 

of writs of execution (94), p. 65. 

DURHAM, COURT OP PLEAS AT : 

provisions relating to the superior courts, to apply to (100), 

p. 71. 
provisions relating to the masters of the superior courts to apply 

to the prothouotary of (101). p. 71. 
appeal from, to the, Court of Queen's Bench on motions for new 

trials, or to enter verdicts on nonsuits (102), p. 72. 

DUTY (see "Stamp"): 

action for mandamus to enforce the performance of (68), p. 47. 

EJECTMENT : 

claimant in second action of, for same premises against same 

defendants, may be ordered to give security for costs (93), 

p. 64. 
special case may be stated in, p. 27. 



98 INDEX. 

ENDORSEMENT ON WRIT: 

of notice of daim of writ of mandamiis (68), p. 47. 
of applicatioii for writ of injanction (80), p. 51. 

ENFORCEMENT OF AWARDS: 

within period for setting aside (10), p. 8. 

ENLARGEMENT OF TIME FOR MAKING AWARDS (15), 
pp. 11, 12. 
when no period stated, to be deemed to be an enlargement for 

one month (15), pp. 1 1, 12. 
power to enlarge is discretionary, p. 12. 

EQUITABLE DEFENCES: 

power to plead in actions at law (89), p. 53. 

or to set up after judgment by way of auditft qneFelft (84), p. 57. 

replication of, to plea of defendant (85), p. 57. 

power to judge to strike oat (86), p. 58. 

examples of, p. 53. 

accident, p. 53. 

mistake, p. 53. 

fraud, p. 54. 

forfeitures, p. 56. 

EQUITY, COURTS OF : 

must still be resorted to in certain cases, pp. 50, 55, 56, 57, 58. 

ERROR: 

may be brought on judgment on a special case (32), p. 26. 

proceedings thereon (32), p. 26. 
upon award of trial 'de noYO (43), p. 32. 
if judgment affirmed in error, Court of Error may adjudge costs 

to the defendant in error (43), p. 32. 

ERROR, COURTS OF: 

to be Courts of Appeal for the purposes of the Act (36), p. 30. 

ERRORS: 

in proceedings, amendment of (96), p. 67. 

EVENT OF TRIAL: 

when costs to abide (44), p. 33. 



INDEX. 99 

EVIDENCE {see also " Discovert ") : 

affirmation instead of oath in certain oases (20), pp. 103, 104. 
penalty for making false statements (21), p. 16. 
how fiir party may discredit his own witness (22), pp. 16, 17. 
proof of contradictory statement of adverse witness (23), 

pp. 19, 20. 
cross-examination as to previous statements in writing (24), 

p. 19. 
pix)of of previous conviction of a witness (25), pp. 20, 21. 
attesting witness need not be called except where attestation 

requisite to the validity of the instrument (26), p. 22. 
compariscw of disputed writing (27), p. 23. 
provision for stamping documents at the trial (28), p. 23. 

on payment of duty and penalty, and additional penalty 
of 1/. documents to be admissible (29) pp. 23, 24. 
no new trial to be granted by reason of the ruling of any judge 

that the stamp is sufficient or does not require a stamp (3l)» 

p. 26. 
extension of preceding provisions to all eourts of civil judicature 

in England and Ireland (103), p. 72. 
verdict of judge on issues of &ct not to be questioned on the 

ground of being against the weight of evidence (1), p^ 1. 
no appeal to be allowed on motion for new trial on the ground 

that verdict against the weight of evidence (35), p. 29. 
when new trial granted on the ground that veirdictagainst* costs 

to abide the event (44), p. 33. 
power to court or judge, upon hearing any motion or summons, 

to direct the oral examination of witnesses (46), p. 34. 
proceedings before and upon such examination (47) pp. 34, 
35, 36. 
punishment for giving fidse, under Act, (89), p. 59. 
process to compel the attendance of witnesses out of the juris- 
diction, to give, p. 77. 

EXAMINATION : 

of judgment debtor, as to debts due to him (60), p. 45. 
of witnesses, vitjd voce^ upon the hearing of any motion or 
smnmons, (46), p. 34. 
proceedings before and upon such examination (47), p. 35. 



100 IKDEX. 

EXAMINATION— con«nu«rf. 

of person who refuses to make an aJfidayit (48), p. 36. 

proceedings upon order for examination (49), p. 37. 
of parties in case of omission to answer written interrogatories 
(53), p. 42. 
depositions upon such examinations to be returned to 

the master's office (55), p. 43. 
special report of examiner thereon (56), p. 43. 
costs of rule and examination to be in the discretion of 
the court (57), p. 43. 

EXAMINATION OP WITNESSES AT THE .TRIAL. See 
" Evidence " and " Witnesses." 

EXAMINER OF WITNESSES: 

to make a special report to the court, if required (56), p. 43. 

EXCHEQUER CHAMBER: 

a court of appeal for the purposes of the Act (36), p. 30. 

EXECUTION : 

after judgment for a mandamus (71), p. 48. 

EXECUTION, STAY OF: 

notice of appeal to be, if bail given (38), p. 30. 

EXECUTION, WRITS OF : 

to fix bail may be tested, and returnable in vacation (90), p. 59. 
duration and renewal of (94), p. 65. 

EXECUTION BY ATTACHMENT OF DEBTS : 

court or judge may order oral examination of the judgment 
debtor, as to debts due to him (60), p. 45. 
mode of conducting examination (60), p. 45. 
Judge may, on application of judgment creditor, order the 
attachment of debts in hands of debtor (61), p. 46. 
and may order garnishee to show cause why he should not 
pay the debt to the judgment creditor (61), p. 46. 



- 1 



INDEX. 101 

EXECUTION BY ATTACHMENT OF D^WTS— continued. 

service of order for attachment or notice to bind such 

debts (62), p. 46. 
if garnishee does not pay or dispute the debt, jadge may order 

execution to issue (63), p. 46. 
if liability disputed, garnishee may be sued by judgment 

creditor (64), p. 46. 
payment by gamisher to be a valid discharge for him (65), p. 47. 

attachment books to be kept by the masters of the courts 
(66), p. 47. 
copies of entries therein may be taken on application 
(66), p. 47. 
costs of application for attachment and proceedings to be in the 
discretion of the court or judge (67), p. 47. 

EXECUTORS: 

proceedings against, upon a judgment of assets in futuro 
(91), p. 60. 

EXPENSES: 

of witnesses served with special writs of subpoena to be paid, p. 78. 

FACT, TRIAL OF QUESTIONS OF : 

by judge by consent, (1), p. 1. 

relating to any particular item in an action referred to arbitra- 
tion (4), p. 4. 

FALSE : 

affirmation, punishment for (21, 89), pp. 16, 59. 
evidence, &c., under Act, punishment for (89), p. 59. 

FEIX)NY: 

proof of conviction of witness for, may be given by the opposite 
party (25), pp. 21, 22. 
form of certificate for that purpose, (25), p. 21. 

FOREIGN ATTACHMENT : 

plea of, in the Lord Mayor's Court of London (65), p. 47. 

FORFEITURE : 

relief against, by courts of equity, p. 56. 

FORM : 

of solemn affirmation or declaration, instead of oath in certain 
cases (20), p. 15. 



102 nn>Ex. 

FOBM-^conHttued: 

of notice to sheriff of renewal of writ of execution, p. 66. 
of prsDcipe for renewal of a writ of execution, p. 67. 

FORMS OF PROCEEDINGS: 

power to the judges to issue (98), p. 70. 

FRAUD: 

relief against, in courts of equity, p. 54. 

GARNISHEE: 

attachment of debts owing or accruing from, to judgment 

debtor (61), p, 46. 
service of order or notice of attachment, to bind debts in the 

hands of (62), p. 46. 
proceedings to levy amount due from, to judgment debtor (6d). 

p. 46. 
may be sued by judgment creditor if he dispntes his liability 

(64); p. 46 
payment by, or execution levied upon, to discharge him (65), 

p. 47. • 

GAZETTE (LONDON): 

publication in, of order extending act toceutts of record (105), 

GENERAL RULES: 

power to the judges to make (97), p. 70. 

GENUINE WRITINGS : 

comparison of, with disputed, may be made by witnesses (27), 
p. 23. 

GROUNDS OF MOTIONS: 

to be stated in rule nisi for new trial, or to enter a verdict or 
nonsuit (33), p. 28. 

HANDWRITING : 

comparison of disputed, with genuine, may be made by wit- 
nesses (27), p. 23. 

HOUSE OF LORDS : 

a court of appeal for the purposes of the Act (36), p. 30. 



WM 



INDEX, 108 

INCONSISTENT STATEMENT : 

proof of, by adverse witness (22), pp. 1 6, 17. 
on cross-examination (23), pp. 19, 20. 
when statement in writing (24), p. 19. 

INDEMNITY: 

to be giyen against claims of third parties where loss of negoti- 
able instrument ordered not to be set up (87), p. 58. 

INFERENCES OP FACT : 

to be drawn by conrt of error on a special case (32), p. 26. 

INFRINGEMENT OF PATENT: 

inspection of machinery in action for, p. 45. 
injunction in action for, p. 52. 

IN FUTURO: 

judgment of assets, proceedings upon (91), p. 60. 

INJUNCTION : 

claim of writ of, in cases of breach of contract or other injury 

(79), p. 51. 
notice on writ of summons, that in de&ult of appearance the 
plaintiff may, besides proceeding to judgment and execu- 
tion for damages and costs, apply for and obtain a writ of 
(80), p. 52. 
proceedings in such action (81), p. 52. 
writ of, may be applied for in any stage of the cause (82), p. 53. 

INIAND REVENUE: 

Commissumers of: 
return to, of monies received at trials on account of stamp 
duties and penalties (29), p. 24. 
to cause documents to be stamped (29), p. 24. 

Beoeioer General of: 
stamp duties and penalties be pfud to, by oflEioers ^of court 
(29), p. 24. 



104 INDEX. 

INSPECTION OF DOCUMENTS: 
at common law, p. 38. 
under the 14 & 15 Vict., c. 99, p. 39. 

INSPECTION OF PREMISES AND CHATTELS: 

power to parties to apply to coort or judge for order for, by 

the jury, himself, or witnesses (58), p. 44. 
terms as to costs and otherwise to be ruled as court or judge 

may direct (58), p. 44. 
not to affect provisions of the Common Law Procedure Act, 

1852, or previous Acts, as to view (58), p. 44. 
application of existing rules to this Act (58), p. 44. 
provisions of the Common Law Procedure Act^ 1852, as to 

obtaining a view, p. 44. 
and of the Patent Law Amendment Act, 1852, p. 45. 

INSTRUMENTS : 

proof of, attesting witness need not be called unless attestation 
necessary to its validity (26), p. 22. 
classes of cases in which attestation necessary, p. 22. 
power to stamp, at the trial (28, 29), pp. 23, 24. 
in actions on negotiable, court or judge may order loss of, not 

to be set up (87), p. 58. 
how act to be cited in (106), p. 73. 

INSUFFICIENCY OF STAMP : .. ; 

duty of the officer of the court to call the attention of the 
judge to (28), p. 23. 

INTERPRETATION OF TERMS (99), p. 70. 

INTERROGATORIES : 

delivery of written, to opposite party, to be answered by affi- 
davit (51), p. 41. 

IRELAND : 

Act not to extend to (107), p. 73. 
except certain providons (103), p. 72. 

power to courts in, to issue process to compel attendance of wit- 
nesses out of jurisdiction, p. 77. 



INDEX. 105 

ISSUES OF FACT : 

trial of by jadge, by consent (1), p. I. 

verdict not to be questioned on the ground of being against the 

weight of evidence (1), p. 1. 
power of court to direct (4), p. 4. 
finding of the jury thereon to be conclusive on the arbitrator 

(4), p. 6. 
involving matters of account not conveniently triable by judge, 

may be referred to arbitration (6), pp. 5, 6. 

JUDGE: 

meaning of the word (99), p. 70. 

trial by, of questions of fact, by consent (1), p. 1. 

verdict of judge to be of the same effect as the verdict of a jury 

(1), p. 1. 
but not to be questioned on the ground of being against the 

weight of evidence (1), p. 1. 

power of, to direct arbitration before trial (3), p. 3. 

or to direct a special case to be stated (4), pp. 92, 93. 

or an issue or issues to be tried (4), p. 4. 

power to direct arbitration at time of trial (6), p. 5« 

power to remit matters to the reconsideration of arbitrator (8), 

p. 6. 
enforcement of awards by authority of, before time for setting 

aside has elapsed (1 0), p. 8. 
power to stay proceedings in action commenced by one party, 

after agreement to refer to arbitration (11), p. 8. 
power to appoint arbitrator or umpire on failure of the parties, 

&c. (12), p. 10. 
to enlarge the term for making an award (15), p. 11. 
to adjourn trial (19), p. 14. 
to administer oath instead of affirmation in certain cases (20), 

pp. 15, 16. 
to allow party to contradict his own witness (22), p. 16. 
to require production of previous statement of witness (24), 

p. 19. 
ruling of, as to sufficiency of stamp, how far final (31), p. 26. 
to direct oral examination of witnesses (46), p. 34. 



106 INDEX. 

J UDGE — continued : 

and command their attendance (47), p. 34. 

and adjourn examination (47), p. 34. 

to order examination of person refusing to make an affidavit 

(48), p. 36. 
to compel the discovery of documents (50), p. 37. 
to allow opposite party or his attorney to be interrogated (51), 

p. 41. 
and in de&ult to order oral examination (53), p. 42. 
to make special report of examination (56), p. 43. 
discretion as to costs (57), p. 43. 
to order inspection by jury, party, or witnesses, of any real or 

personal property (58), p. 44. 
and to make rules or orders upon the sheriff in relation thereto, 

(59), p. 45. 
to order the examination of a judgment debtor (60), p. 45. 
and to order attachment of debts (61), p. 46. 
and in de&ult of payment, or dispute of debt, to issue execution, 

(63), p. 45. 
or if liability disputed, to allow judgment auditor to proceed 

against the garnishee (64), p. 45. 
to order the specific delivery of chattels (78), p. 50. 
to grant writ of injunction, exparte (82), p. 53. 
to strike out equitable plea or replication (86), p. 58. 
to order loss of instrument not to be set up (87), p. 58. 
to compel continuance on abandonment of action in case of 

death (92), p. 61. 
to require security for costs in second ejectment for the same 

premises (93), p.64 . 
to amend defects and errors in proceedings under Act, (96), 

p. 67. 

JUDGES: 

two may sit at the same time for trial of causes pending in the 

same court (2), pp. 2, 3. 
power of, to make general rules and orders (97), p. 70. 
powers given to, of the superior courts at Westminster, to be 

exercised by the judges of the palatinate courts (100), p. 71. 



INDEX. 107 

JUDGES OP PALATINATE COURTS : 

powers of, to make rules, &c. (100), p. 71. 

JUDGE OF A COUNTY COURT : 

power of jadge of superior court to refer matters of account to, 
(3, 6), pp. 3, 5. 

JUDGE'S ORDER : 

referring matters of account to arbitration (3, 6), pp. 3, 5. 
for stating case (4), p. 4. 
for trial of aq issue (4), p. 4. 
referring matters back to arbitration (8), p. 6. 
staying proceedings in action where parties have agreed to arbi- 
tration (11), p. 8. 
appointing arbitrator on death or fidlure of parties (12), p, 10. 
to enlarge time for making award8~(15), p. 11. 
for adjournment of the trial of a cause (19), p. 14. 
for the oral examination of witnesses (46, 47), p. 34. 
for the discovery of documents (50), p. 37. 
for the oral examination of the parties or their attorneys (53), 

p. 42. 
for the inspection by the jury, party, or witnesses of any real 

or personal property (58), p. 44. 
or machinery, under the Patent Law Amendment Act, 1852, 

p. 45. 
upon the sheriff or other person, to procure the attendance of 

jurors (59), p. 45. 
to examine judgment debtors as to debts due to him (60), p. 45. 
to attach debts owing by the garnishee (61), p. 46. 
for execution in default of payment (63), p. 46. 
or that the judgment creditor shall proceed by suit (64), p. 4C. 
that execution shall issue for the return of a detained chattel (78), 

p. 50. 
to strike out equitable plea or replication (86), p. 58. 
that loss of negotiable instrument shall not be set up (87), p. 58. 
compelling party to proceed with action on death of either 

party (92), p. 61. 

K 2 



108 INDEX. 

JUDGMENT: 

to be given by Court of Error on a special case (32), p. 26. 

in action for mandamus (71), p. 48. 

of assets infubsro, proceedings upon (91), p. 60. 

JUDGMENT CREDITOR: 

proceedings by, for attachment of debts due from third persons 

to debtor (60 to 67). {See Judgment Debtor, infra,) 
examination of, as to debts due to him (60), p. 45. 
power of judge to order an attachment of debts doe to (61), 

p. 46. 
order for attachment to bind debts (62), p. 46. 
proceedings to levy amount due from garnishee to (63), p. 46. 
by order of judge the judgment creditor may sue the garnishee 

if he disputes his liability (64), p. 46. 
nature of writ and proceedings thereon (64), p. 46. 
payment by garnishee to be a discharge as against the (65), p. 47. 
attachment book to be kept by the masters of each court (66), 

p. 47. 
costs of application (67), p. 47. 

JURISDICTION OP SUPERIOR COURTS: 

{Set COUBT, ANTE.) 

JURY: • 

inspection of real or personal property by (58), p. 44. 

power to courts or judge to make rules and orders to procure 

the attendance of a special or common (59), p. 45. 
provisions of the Common Law Procedure Act, 1852, as to a 

view by, p. 44. 

LANCASTER, COURT OP COMMON PLEAS AT : 

provisions relating to the superior courts, to apply to (100), 

p. 7L 
provisions relating to the masters of the superior courts to 

apply to the prothonotary of (101), p. 71. 
appeal from, to the Court of Queen's Bench, on motions for 

new trials, or to enter verdicts or non-suit (102), p. 72. 



INDEX. 109 

LAND: 

enforcement of delivery of possession of, pursuant to award 
(16), p. 12. 

LEVY: 

against the garnishee by judgment creditor (65), p. 47. 

of costs of action and suggestion by defendant on default of 

plaintiff to proceed in action, after death of either party (92), 

p. 61. 

LONDON GAZETTE : 

publication of order in, for the extension of Act to courts of 
record (105), p. 72. 

LORDS, HOUSE OF : 

a court of appeal for the purposes of the Act (36), p. 30. 

LOST INSTRUMENTS: 
actions on (87), p. 58. 

MACHINERY : 

inspection of, under the Patent Law Amendment Act, 1852, 
p. 45. 

MANDAMUS : 

action for writ o^ to enforce the performance of duties (68), 

p. 47. 
declaration in such action, what to allege (69), p. 48. 
pleadings and other proceedings therein (70), p. 48. 
costs (70), p. 48. 

issue of peremptory writ of (71), p. 48. 
form of writ (72), p. 48. 
force and effect of (73), p. 49. 
may be enforced by attachment (73), p. 49. 
or the court may order the act to be done at the defendant's 

expense (74), p. 49. 
prerogative writ of, preserved (75), p. 49. 
proceedings for accelerated' (76), p. 49. 
provisions of the Conmion Law Procedure Acts, applied to (77), 

p. 49. 



110 INDEX. 

MASTER : 

meaning of the word (99), p. 70. 

MASTERS OF THE COURT : 

notice of appeal to be given to (37), p. 30. 
examination of witnesses by (46, 48), pp. 34, 36. 
power to adjourn (47), p. 34. 

examination of the parties or their attorneys by (53) p. 42. 
depositions to be kept in their office (55), p. 43. 
may make a special report (56), p. 43. 
examination of judgment debtor by (60), p. 45. 
debt-attachment book to be kept by (66), p. 47. 
provisions as to, extended to the prothonotarres of the Palatinate 
Courts (101), p. 71. 

MISDEMEANOUR : 

proof of conviction of witness for, admissible in evidence by 

opposite party (25), pp. 20, 21. 
form of certificate (25), p. 21. 

MISTAKES : 

relief in equity against, p. 53. 

MOTIONS : 

. examination of witnesses on the hearing of (46), p. 34. 

NEGOTIABLE INSTRUMENT: 

order that loss of, shall not be set up as a defence to action on, 
provided an indemnity is given (87), p. 58. 

NEW TRIAL: 

not to be granted by reason of the ruling of any judge, that the 

stamp upon any document is sufficient, or that the document 

does not require a stamp (31), p. 26. 
grounds for granting to be stated in the rule nisi (33), p. 28. 
when granted on the ground that the verdict was against 

evidence, the costs of the first trial shall abide the event 

(44), p. 33. 
appeal on motions for (35), p. 29. See Appeax. 



Index. Ill 

NOTICE : 

to appoint arbitrator, umpire, or third arbitrator ; if not com- 
plied with, judge may appoint (12), p. 10. 

to appoint arbitrator, where duty of such party to appoint one 
(13), pp. 10, 11. 

of appeal against decision of the court on motions for new 
trial, &c., to be given in writing (37), p. 30. 

to be a stay of execution (38), p. 30. 

to sheriff, of renewal of writ of execution, p. 66. 

at the foot of writ of subpcsna, and warrant of citation to be 
served out of the jurisdiction of court, p. 78. 

OATH : 

affirmation in lieu o^ in certain cases (20), pp. 15, 16. 

OFFICE COPIES: 

of depositions of witnesses may be given out (55), p. 43. 

OFFICER : 

of the Chief Justice or Chief Baron to appoint persons to attend 

the trial of causes when two courts sitting at the same time 

(2), p. 2. 
having custody of the records, certificate of conviction by (25), 

p. 21. 
of the court, reference of matters of account to (3, 6), pp. 3, 5. 
to call attention of this judge to any omission or insufficiency of 

the stamp on'documents (28), p. 23. 
to give receipt for the stamp duty and penalty paid to him (29), 

p. 24. 
and to make an entry of the payment in a book (29), p. 24. 
and to make a return of to the Commissioners of Inland 

Revenue of the moneys received by him (29), p. 24. 
and to pay moneys to the Receiver General (29), p. 24. 

OF BODY CORPORATE: 

order on, to answer on affidavit as to documents in the possession 

or power of (50), p. 37. 
to answer interrogatories (51), p. 41. 



112 

OMI^ION OF STABfP ON DOCUMENTS: 

duty of tiie oAeer of Ae eont to call te attention of tlie judge 
to (28), p. 23. 

ORAL EXAMINATION : 

of witnoMB bf Older of die eoort or jadge (46), p. 43. 
of parties or their attaroeys (5S), p. 4S. 
of judgment detCor (60), p. 43. 

ORDER: aee 'JuDotB Obdeb.' 

PALATINATE COURTS: 

proYinons relating to the saperior ooorts, i^plicable to pro- 

ceedingiB in (100), p. 71. 
prorisioiis as to masters of the saperior oonrts to apply to 

prothonotaries of (101), p. 71. 
appeal from to the Court of Queen's Bench on motions for new 

trials, &C. (102), p. 72. 

PALATINE COUNTIES: m» 'Pau^tinate Comns,' utpra. 

PATENT: 

inspection of machinery, in action for the infringement of, 

p. 45. 
injunction to restrain infringement of, p. 52. 

PAYMENT : 

by the garnishee to judgment creditor, to be a discharge to him 
as against the judgment debtor (65), p. 47. 

PAYMENT INTO COURT : 

by garnishee of amount of debt, proceedings in de&ult of (63), 
p. 46. 

PENALTIES : 

for false affirmation or declaration (21, 89), pp. 16, 59. 
to be paid on haying unstamped document stamped at the trial, 
(28), p. 23. 



.J-*-. _ « _ J ap»8"w'. 



INDEX. 113 

PEREMPTORY WRIT OF MANDAMUS: 

issuing ot, after jadgment in action for mandamus (71), p. 48. 
to have same effect as a pereroptor j writ of mandamns issued by 
the Queen's Bench (73), p. 49. 

PERSONAL ATTENDANCE OP WITNESSES : 

process to compel, when out of the jurisdiction, p. 77. 

PERJURY : 

persons making fiUse affirmation or declaration in lieu of oath, 

guilty of and liable to penalties for (21), p. 16. 
persons giving fidse evidence upon examination or on any 
affidavit in proceedings under Act, liable to penalties for (89;, 
p. 59. 

PERSONAL PROPERTY: 

inspection of, by the jury, parties or witnesses (58), p. 44. 

PLEA: 

delivery of interrogatories with the (51), p. 41. 
of equitable defence (83% p. 53. 

PLEADINGS IN ACTION : 

where a writ of mandamus is claimed (70), p. 48. 

POSSESSION OF LAND: 

delivery o^ pursuant to amend (16), p. 12. 

PREMISES : 

inspection of, by the jury, parties, or witnesses (58), p. 44. 

PREROGATIVE WRIT: 

of mandamus preserved (75), p. 49. 
proceedings for, accelerated (76), p. 49. 

provisions of the Common Law Procedure Acts applied to 
pleadings and proceedings upon (77), p. 49. 

PREVIOUS CONVICTION : 

of witness for felony or ijusdemeanor, proof o^ when may be 
given (25), pp. 20, 21. 

K 3 



114 INDEX. 

PREVIOUS STATEMENT: 

of witnesses, ezamination as to, fi>r the purposes of contradiction 
(22, 23, 24), pp. 16-20. 

PRINCIPAL AND SECURITY i 

relief in equity in proceedings relating to, p. 57. 

PRISONERS : 

power to remoye for examination as witnesses, p. 36. 

PROCEEDINGS : 
at the trial, p. 13. 

speeches to the jury (18), pp. 13, 14. 
adjournment (19), p. 14. 
how Act to be cited in (106), p, 73. 

PRODUCTION OF DOCUMENTS: 

judges order for (46), p. 34. 

PROPERTY : 

inspection of any real or personal, by the jury party or witnesses 
(58), p. 44. 

PROTHONOTARIES OF PALATINATE COURTS: 

provisions as fo masters of the superior courts, to be applicable 
to (101), p. 71. 

PUNISHMENT: 

of persons disobeying special writs of subpoena, p. 78. 

QUASHING PROCEEDINGS : 

power of the court of appeal to, pp. 31, 32. 

QUEEN'S BENCH, COURT OF: 

jurisdiction of, to grant writs of mandamus, preserved (75), 49. 
rule by, for mandamus, may be absolute in the first instance, 

(76), p. 49. 
provisions of the Conmiou Law Procedure Act, 1852, to apply 

to the proceedings upon a prerogative writ of mandamus 

issued by (77), p. 49. 



:^^smmrmmmtmt9^t^fKifi'i''smam^mmmm^mmmmmimmiK^mmm 



INDEX. 115 

QUEEN'S BENCH, COURT 0¥--€<mtmued, 

to be the Court of Appeal from the Palatinate Courts, in 
reference to motions for new trials, or to enter verdicts or 
nonsuits (102), p. 72. 

QUESTIONS OF FACT: 

trial of by judge, by consent (1), p. 1, 

power to order trial of particular, where cause is referred to 

arbitration (4), p. 4. 
stated as interrogatories, to be answered in writing on affidavit 
(51), p. 41. 

REAL PROPERTY : 

inspection of, by the jury, parties or witnesses (58), p. 44. 

RECORD : 

entry of special verdict on the. p. 27. 
difficulty of entering special case on the, p. 27. 

RECORD, COURTS OF: 

power to extend Act to (105), p. 72. 

REFERENCE : see * Arbitration * and * Arbitrator/ 
REFEREE: see ' Arbitrator.' 

RENEWAL : 

of writs of execution (94), p. 65. 

notice to the sheriff of, p. 66. 

form of prsecipe for renewal of writ, p. 66. 

REPLICATION : 

on equitable grounds, p. 57. 

REPLY TO THE JURY : 

the right to be the same as at present (18), p. 13. 

REPORT: 

of examination of witnesses (56), p. 43. 



1 16 INDEX. 

RESTITUTION: 

poirer of the Court of Appeal to order (42), p. 31. 

RETURN : 

to be made by officer of ooart to the Commisaionerg of Inland 

Revenue of stamp duties and penalties received bj him 

(29), p. 24. 
to peremptory writ of mandamus (72), p. 48. 
to writ of mandamus issued by the Court of Queen's Bench} 

(76), p. 49. 

RETURN OF CHATTELS : 
execution for (78), p. 60. 

REVIVOR, WRIT OF : 

proceedings on suit by judgment creditor against the garnishee 

to be the same as upon (64); p. 4^. 
the like as to proceedings agunst executors upon a judgment of 

assets infuturo (91), p. 60. 

RULE OP COURT : see * Judge's Order.' 

every agreement or submission to arbitration may be made a 
(17), p. 12. 

RULE NISI : 

for a new trial or to enter a verdict or nonsuit, to state grounds, 

(33), p. 28. 
to enter a verdict or nonsuit upon a point reserved at the trial, 
right of appeal if revised, discharged, or made absolute (34), 
p. 28. 
so on motion for a new trial if one of the judges dissent from 

the ruling of the court (35), p. 29. 
or if the court think fit, tliat an appeal should be allowed 

(35), p. 29. 
but no such appeal where the application for a new trial is 
upon matter of discretion only (35), p. 29. 
when granted on appeal, to be argued and disposed of in the 
Court of Appeal (40), p. 31. 



i«Bi»"^iP 



INDEX. 117 

RULES: 

power to the judges to make general (97), p. 70. 

SCIRE FACIAS: 

on judgment of SMets infuturo (91), p. 60. 

SCOTLAND- 

act not to extend to (107), p. 73. 

power to courts in to issae proeess to compd the attendance of 
witnesses out of the jurisdiction, p. 77. 

SECURITY FOR COSTS : tee * Bail.' 

in second action of ejectment between the same parties for the 
same premises (93), p. 64. 

SERVICE : 

of order for attachment of debts, to bind debts in the hands of 
the garnishee (62), p. 46. . 

of writs of subp<Bna and warrants of citation out of the jurisdic- 
tion of the courts, p. 77. 

SETTING ASIDE OF AWARDS : 

applications for, on compulsory references, must be made within 
seven days of the term following the publication to the parties 
(9), p. 7. 

SHORT TITLE OF ACT (106), p. 79. 

SITTINGS OF THE SUPERIOR COURTS: 

may be appointed and held, whether in term or vacation (95), 
p. 67. 

SHERIFF : 

duty of to deliver possession of lands and tenements pursuant to 

award (16), p. 12. 
duty of, on a rule for a view, p. 44. 
courts or judge may make rules or orders upon, to procure the 

attendance of special or common juries (59), p. 45. 



118 INDEX. 

SHERIFF— oontinued. 

order on, to distrain defendant's effects to compel retorn of 

specific chattel (78), p. 50. 
notice to, of renewed writ of execution, p. 66. 

SHIPOWNERS' ACT. 

jurisdiction of the Courts of Equity, intended to be, but not 
extended to the Common Law Courts (88). 

SOLEMN AFFIRMATION OR DECLARATION : 
instead of oath in certain cases (20), pp. 15, 16. 

SPECIFIC DELIVERY OP CHATTELS: 
in actions for their detention (78), p. 50. 
exercise of that power by the courts of equity, p. 50. 

SPECIFIC PERFORMANCE : 

power of plaintiff to indorse on writ a notice of claim for a 
writ of mandamus (68), p. 47. 

and to claim writ in the declaration (68), p. 47. 

declaration to set forth the grounds of claim (69), p. 48. 

pleadings and proceedings thereon (70), p. 48. 

issue of peremptory writ of mandamus if judgment be given to 
the plaintiff (71), p. 48. « 

form of writ (72), p. 48. 

no return to it allowed except compliance (72), p. 48. 

such writ to have the force and effect of a peremptory writ of 
mandamus issued by the Queen's Bench (73), p. 48. 

if disobeyed may be enforced by attachment (73), p. 49. 

or direct act to be done by the plaintiff or other person ap- 
pointed by the court (74), p. 48. 

expenses and costs may be recovered fW)m the defendant (74). 

SPECIAL CASE: 

as to particular item where the cause is referred to arbitration 

(4), pp. 4, 5. 
power of arbitrator to state (5), p. 5. 
error may be brought on judgment on (32), pp. 26, 27. 
proceedings for bringing, before the Court of Error' (32), 

pp. 26, 27. 



INDEX. 119 

SPECIAL JURY: 

power to make rules or orders on sheriff, to procure the attend- 
ance of (59), p. 45. 

SPECIAL ORDER: 

for issuing writs of subp<Bna to compel the attendance of wit- 
nesses out of the jurisdiction of the court, p. 77. 

SPECIAL REPORT; 

by examiner of witnesses (56), p. 43. 

SPEECHES: 

of counsel at trial, regulation of (18), pp. 13, 14. 

STAMP: 

no document under Act to require a stamp (30), p. 26. 
provision for stamping documents at the trial (28), p. 23. 

officer of the court to receive the duty and penalty (29), p. 24 . 
no new trial to be granted on ground that document improperly 

received in evidence (31), p. 26. 

STATEMENTS : 

proof of to contradict witnesses, pp. 17-19. 

by party calling adverse witness (22), pp. 16, 17. 

upon cross-examination (23, 24), pp. 19, 20. 

STAYING PROCEEDINGS : 

in action commenced after agreement to refer to arbitration 

(11), pp. 8, 9. 
in second action of ejectment until plaintiff gives security for 
costs (93), p. 64. 

STRIKING OUT EQUITABLE PLAN OR REPLICATION: 

power of court or judge to order (86), pi 58. 

SUBMISSION TO ARBITRATION : 

by consent, may be made a rule of court (17), p. 12. 



120 INDEX. 

SUBPCENA, WRITS OF : 

power to courts of oommoii law in the United Kingdom to inue- 
to compel the attendance of witnesses, p. 77. 

SUGGESTION : 

entry of, by defendant of plaintiff's default in proceeding (92) 
p. 61. 

SUMMARY DECISION : 

of matters of account by judge on application of either party 
(3), p. 1. 

SUMMING UP THE EVIDENCE : 

right of party to address the jury for the purpose of (18), pp. 13, 
14. 

* 

SUMMONS: 

examination of witnesses on the hearing of any (46), p. 34. 

TENEMENTS: 

delivery of possession of, pursuant to award (16), p. 12. 

TITLE OF ACT (106), p. 73. 

TITLE TO LAND : 

could not pass by award, p. 12. 

TRAVERSE : 

of equitable plea, (85), p. 57. 

TRIAL : 

of questions of fact, by judge, by consent (1), p. 1 . 

of causes pending in the same court, power for two judges to sit 

at the same time for (2), pp. 2, 3. 
reference to arbitration before (3), p. 8. 
reference to arbitration at trial (6), pp. 5, 6. 
speeches of counsel at (18), pp. 13, 14. 
adjournment of (19), p. 14. 



IHDEX. 121 

TRIAL, WITNESSES AT : 

how far party may discredit his own witness (22), pp. 16-18. 

proof of contradictory statements of adyerse witnesses (23). 
pp. 19, 20. 

(»ro6s-examination of witnesses previous to statements in writing 
(24), p. 19. 

proof of previous conviction of (25), pp. 20-22. 

attesting, need not be called except in certun cases (26), p. 22. 

comparison of disputed writing by (27), p. 23. 

provision for stamping documents at (28, 29), pp. 23-25. 

no new trial to be granted for ruling that stamp, sufficient or 
not, requisite (31), p. 26. {See New Trial.) 

appeal on motions for new trial, which motion refused or rule 
discharged or made absolute (34), p. 28. {See Appeal.) 

where new trial granted on ground that verdict was against evi- 
dence, costs of the first to abide the event (44), p. 33. 

process to compel attendance of witnesses at, p. 77. 

UMPIRE ; 

power of two arbitrators to appoint (14), p. 11. 
appointment of, by judge on fedlure of parties or arbitrators 
(12), p. 10. 

UNSTAMPED DOCUMENTS: 

may be stamped at the trial (28, 29), pp. 23, 24. 

UNWILLING WITNESSES: 
examination of (48), p. 36. 

VACATION : 

power to appoint sittings in (95), p. 67. 

VERDICT : 

of judge on issues of &ct, to have effect of a verdict of a jury 

(1), p. 1. 
but not to be questioned upon the ground of being against the 

weight of evidence (1), p. 1. 
when will be set aside, and new trial granted p. 33. 



122 INDEX. 

VIEW: 

adjournment' of the court for a, not often necessary, p. 15. 
order for the inspection by the jury, party, or witnesses, of any 

real or personal property (58), p. 44. 
not to affect previous provisions as to, (58), p. 44. 
applications of previous provisions as to, to apply to order for 

inspection (58), p. 44. 

VIEWERS : 

sheriff to deliver to either party the names of, p. 44. 
and to return their reasons to the associate, p, 44. 

VIVA VOCE : 

examination of witnesses by order of the court or judge (46), 
p. 34. 

WARRANTS OF ATTORNEY: 
must be attested, p. 22. 

WARRANT OF CITATION IN SCOTLAND : 

to compel attendance of witnesses, p. 77. 

WILLS : 

attesting witnesses necessary to the validity of, p. 22. 

WITNESSES: 

attendance of before arbitration, rules and enactments respecting 

to apply to reference under Act (7), p. 6. 
affirmation instead of oath to be made by, if unwilling to be 

sworn from conscientous motives (20), pp, 15, 16. 
penalty on, for making false statements (21), p. 16. 
how far party may discredit his own (22), pp. 16, 17. 
proof of contradictory statements of adverse (23), pp. 18, 19. 
cross-examination of, as to previous statements in writing 

(24), pp. 17, 18. 
proof of previous conviction of (25), pp. 20, 21. 
attesting, need not be called in certain cases (26), p. 22. 
comparison by, if disputed with genuine writing (27), p. 23. 
power to court or judge, upon the hearing of any motion or 

summons,' to direct the examination of, tfivd voce (46), p. 34. 
proceedings before and upon such examination (47), pp. 34, 35. 



INDEX. 123 

WITNESSES— confmuerf. 

examination of person refusing to make affidavit (48), p. 36. 

proceedings upon order for examination (49), p. 37. 

oral examination of parties omitting to answer written inter- 
rogatories (53), p. 42. 

proceedings thereon (54), p. 43. 

depositions npon such examinations to be retomed to master's 
office (55), p. 43. 

examiner may make special report to the court (56), p. 43. 

costs of rale and examination of, under Act, to be in the dis- 
cretion of the court or judge (57), p. 43. 

inspection of real or personal property by (58), p. 44. 

compelling the attendance of, p. 77. 

power to courts of law in England, Ireland, and Scotland to 
issue process to compel the attendance of witnesses, although 
not within their jurisdiction, p. 77. 

statement to be made at the foot of writ that it is issued by 
special order, p. 78. 

punishment of witnesses making default, p. 78. 

persons not to be punished if insufficient sum tendered for 
expenses, p. 78. 

Act not to prevent the issuing of a commission to examine 
witnesses, p. 78. 
nor to afifect the admissibility of evidence where now 
receivable, p. 79. 

WRITING : 

Comparison of disputed with genuine, may be made by wit- 
nesses (27), p. 23. 

WRITS : 

forms of new or altered, may be framed by the judges 
(98), p. 70. 

Of Execution : 
not to be in force for more than six months (94), p. 65. 
power to renew (94), p. 65.. 



124 IND£X. 

WRITS— oonWrMKjd. 
Of SviypoBna : 
to compel attendance of witnesses, power to courts of common 
law in the United Kingdom to issue, p. 77. 

WRITTEN INSTRUMENTS : 

comparison of disputed with genuine, by witnesses and jury 
(27), p. 23. 

WRITTEN INTERROGATORIES: 

delivery of to the opposite party (51), p, 41. 

WRITTEN STATEMENT : 

Cross-examination of a witness as to, without producing it 
(24). p. 17. 



lOKDON: PBIKTED BT W. CLOWES IND £ONS, STAXTO&D STBBKT. 



CATALOGUE 



MESSRS. BUTTERWORTH, 



LAW PUBUIHERS TO THE QUEEN'S MOST EXCELLENT kIajEITV, 
yi^i»l)»w la ttic TftiHlk 7ita(a Stpntminl. 



" Note M H" LnH ef Enflond (1/ 1 ikall v"^ •« <V^i« '/ (*n> 
kIMhI rarllaMf tllhir lo mg pmfittion or muilrf ), fur Ihr luflir 



LONDON: 

7, FLEET STREET. 

1854. 



CONTENTS OF THE CATALOGUE. 

Pace 

AftCHBR'f Index to the Unrepealed Statutes • 10 

BAiNBRibOB's Law of Mines and Minerals 14 

Bakbk's Law of Coroner 19 

Brown I on Actions at Law . 15 

BuBCHKLL and Kenkkdt's Joint Stock Companies Act . . .18 

Clabk's Hoase of Lords Reports 20 

Coo pbr's Chancery Acu and Orders 14 

Chancery Chamber Practice 14 

Chancery Cases and Dicta SO 

CooTB's Ecclesiastical Practice 15 

Cb abb's Conveyancing, by Christie 7 

Datis's County Coart Evidence 16 

Fa rbbn's Forms of Original Bill 18 

Fonblanqub's Rankraptcy Reports .21 

Oabl on Ugal Instraments • .... 18 

Obant's Law of Corporations in General 14 

G rbb NINO'S Forms of Pleadings, &c., in Common Law • . . 13 

Gunning on the Law of Tolls 16 

Ha MBL's Laws of the Customs 10 

Hbbtslbt's Commercial Treaties 18 

James on Land and Building Societies l6 

Kbbb's Common Law Procedure 3 

Kbysbr's Law of the Stock Exchange 17 

Leigh's Law Student's Guide 17 

Moorb's Solicitor's Practical Forms 12 

— Instructions for preparing Abstracts of Title . , . ,12 

■ Country Attorney's Pocket Remembrancer . . " . . 12 

Norman's Treatise on the Law of Patents 10 

Notes of Cases in the Ecclesiastical and Maratime Courts ... 21 

O&b's Magisterial Synopsis . 11 

~— Magisterial FormuUst 11 

• ■ Solicitor's Bookkeeping 11 

Turnpike Laws « 3 

O'DowD's New Chancery Practice 9 

Polling's Law and Usage of Mercantile ai^d Joint Stock Accounts 13 

QUAIN and HoLROYD's Common Law Procedure 8 

Robinson's, Dr., New Admiralty Reporu 21 

Route's Copyhold Eufraochisement Manual 9 

Scott's Common Bench Reports SO 

Sc bit en's Law of Copyholds, by Stalman 17 

Sb well's Law of Sheriff 19 

Shelford's Law of Railways 19 

Stephen's New Commentaries on the Laws of England .... 5 

- ■ • ■ ■ Questions on Ditto 5 

Tu dor's Edition of Pothier's Partnership 15 

Warrbn's Manual of Election Law and Registration .... 8 

■ Election Committee Practice 8 

Whabton's Anided Clerk's Manual ' 4 

WiLLS's Principles of Circumstantial Evidenee ...*.. 17 

WoBKS Preparing for Publication 82 



MESSRS. BUTTERWORTH9 FLEET STREET. 3 

Kerr's Common Law Procedure Act, 1854, 

The COMMON LAW PROCEDURE ACT, 1854 
(17 & 18 Vict. c. 125); with an Introduction, full and ex- 
planatory Notes, and a copious Index. By Robert Malcolm 
Kerr, Esq., Barrister at Law. 12mo. cloth. 

CONTENTS. 
Intboduction. 

Chap. I. SpecificFerfo&makce.— Prerogative Writof Mandamus — Action 
to obtain a Mandamus. 

II. Injunction. — Claim of Injunction— Proceedings in the Action. 

III. DiscovBKY. — Discovery of Documents— Interrogatories— Oral Ex- 

amination of Parties— Inspection of Premises and Chattels. 

IV. Equitable Defences. 

V. Pboceedings on the Trial.— Trial by the Court or a Judge — 
Compulsory Reference to Arbitration — Amendments in the Lav 
of Arbitration— Trial by Jury. 

Vi. Pboceedinos after the Trial.— Special Case — Motions for a 
new Trial, &c.— Proceedings on Appeal against Rules to enter 
Verdict or Nonsuit, &c. 

VII. Execution bt the Attachment of Debts. — Order of Attach- 
ment — Proceedings against the Garnishee. 

VIII. SuMMART Proceedings in Court. — Affidavits — Examination of 
unwilling Witnesses. 

IX. Alterations in the Law of Evidence. — Affirmations instead 
of Oaths — Discrediting Witnesses — Proof of contradictory State- 
ments—Cross-examination as to previous Statements— Proof of 
previous Conviction of a Witness — Attesting Witnesses— Com- 
parison of disputed Handwriting — Stamp Duties. 

The Statute. 



Oke's Turnpike Laws. 

The LAWS of TURNPIKE ROADS : comprising 
the whole of the General Acts now in force ; the Acts as to 
Union of Trusts, for facilitating Arrangements with their Cre- 
ditors as the interference hy Railways with Roads, their non- 
repair, and enforcing contributions from Parishes, &c., &c. 
Practically arranged, with Cases, copious Notes, and all the 
necessary Forms, &c., &c. By George C. Ore, Author of 
*' The Magisterial Synopsis" and *' The Magisterial Formulist." 
12mo. 12s. cloth. 

" The peculiar knowledge possessed by Mr. Oke was essential to the prodnc- 
tion of such a volonie as that which the practitioner wanted, and it is ail that 
coold be desired."— I<av 2$met. 



PUBLISHED BY MESSRS. BUTTERWORTH. 



Wkarton^s Articled Clerk^sManual. — 7 th Ed. 

MANUAL for ARTICLED CLERKS : containing 
Courses of Study as well in Common Law, Conveyancing, 
Equity, Bankruptcy and Criminal Law, as in Constitutional, 
Roman, Civil, Ecclesiastical, Colonial and International Laws, 
and Medical Jurisprudence ; a Digest of all the Examination 
Questions ; with the New General Rules, Forms of Documents, 
Notices and Affidavits, and a List of the proper Fees— being a 
comprehensive Guide to their successful Examination, Admis- 
sion and Practice as Attomies and Solicitors of the Superior 
Courts. Seventh Edition. By J. J. S. Wharton, M.A., of 
the Middle Temple, Barrister at Law, Author of The Law 
Lexicon," &:c. 12mo. 14s. cloth. 

From tht Lmw Tinus. 

** The seveDth edition of a law book carries its own recommendation on the 
face of it. A book that has not been fouod in j)ractice to be very useful rarely 

Eaa«es into a second edition, never into a third. ^h«n. therefore, any worlc 
as attained to the honour of a seventh edition, we may take it for granted that 
it has been approved by those who have made actual trial of it as a teacher or 
adviser. That is the judgment invoked by the volume before us, which on 
former occasions we have ititroiinced apnrovingly to our readers, but whose 
appearance for the seventh time in a still improved shape we cannot omit to 
welcome with renewed applause." 

From tke LeguUian Examination Qutstiont. 

" An earnestness and sincerity of purpose is discernible throughout his pages, 
and we cheerfully recommend the work to Students as a very useful first book, 
9Jid one from which they may gather much valuable advice and knowledge." 

From ike Jusiie* of the Peace, 

** The Student may feel perfectly assured that the plan upon which the work 

f proceeds is one which, more than any other, is likely to fix the knowledge of 
egal principles in the mind in such a manner as to make them avaiiab e Doth 
for \h» purposes of his examination and for general practice, after that is over." 

From the Morning Herald. 

" The author of this aseful volume has undoubtedly achieved the object he 
had in view when he commenced it. and has produced a most complete and 
comprehensive Ouide for the Articled Clerk." 

FVom the Britannia. 

" This work differs from its competitors, not only in oontaininff a ▼ast amount 
of information on matters to which a Student's attention should be drawn, but it 
trenches upon subjects not even witliin the scope of filackstone's comprehensive 
treatise." 

From Belts Messenger . 

** This volume, as its name imports, is intended chiefly for the use of young 
men preparing for admission to the practice of the law, and to this class we can 
recommend it as likely to be of great value in directing the course of their 
stnaies/' 



LAW WORKS PUBLISHBD BY 5 

Stephen's New Commentaries on the Laws 
of England. — Third Edition. 

Bleated by ptrmiiaion, to Her Mnjeili, THE Q VEBK, 

NEW COMMENTARIES on the LAWS of 
ENGLAND, in which are internoven, under a new and 
original Arrangement of the general Subject, all such parts of 
the Work of Blackslone ai are applicable Co ihe present times; 
together with full but compendious Expositions of the Modem 
Improvements of tile Law up to the end of last Session ; the 
original and adopted Materials being tbrougbout the Work 
t Ijrpographically distinguished from each other. By Henby 
JoBH Stefhen, Serjeant at Lav. Third Edison. Prepared for 
the press by Jaues Stephen, of the Middle Temple, Barrister 
at Law, and Professor of English Law, &c., at King's College, 
London. 4 vols. Svo. Four Guineas, cloth. 

Ram lU Lm TVmu. 
" AmiDliif Ihn sll pndut PrMlHiiiHn ul Stndnti will wuh Ibtli hudi 

tttae pulind b«iiiiHiIuTiiinillpnclleillibHTlHulinlTiitIhinuiitliv, 
T could not flKlabMUrfouiiduloa Iku tkb tkM uil onr «liii« of .S»r- 
}mi ^i>i»'i CoaiBmurin. wbkhbM ton suniUid Onnatiaiit M the yrtttM 
■uia of iIm liw h4 Bonin im all Ihi icnnit lUwiuaai. Evsn Li*Tu kuawi 
uie W(Hth or thii unaiu woik u IE tamk dob Iht hutdi arni Aauior ; w« 

Kauun Ihtii Ihit It huiintiioigof IttTihi liilhaliaiidiol UiSoii. who 
pnlonDdl Ui libniso* t*fk of tduli* all MM.nwiiliM ■■ck, wltkllu 
nnoeucttH ■«,« Xa^aat,™ «m« uMiwiodhi i^SpSirfw law. 
ud 11 iho HAS oMir aad flneerO] i^la, (bat noMBiHed iho eoBpoaidoBB of 
U> BNlwr IB Bainilirllj,.inii nan ihn thi Adnn of lianlBff, wMou Hi 
Bandi, ib«dIiUHTiliM.tluM llinidiaurios, Tta wt mmrpaind aflat of 
BlaSKeoo wa i»di ilnli^ uf iha worii, Kt iDMaad ^^VibFtki (oil irith 
■oui, lit. StriaBDl SESphea p r etnrea tae nan dlmoah bul iwm vvnAiTo luaa 
of nwiittov tna whflda^iwaiamDff tin wansoi Ihe origlual tobereTcr ibffy wara 
fraliaUa alill, bat anlttlia what WIS ■Molda. addiaswbat bad lince accaam- 
lBUd,*aa ibu BiakMK a coniiltia Daallaa In Ibiuinaihaiw, udnitli much the 
•aBaluiun.onlr n>iM (1. ts Bladuuoa Biabi ba lappoHd to hivt done, had 
ki llnd and lanuM aaw uuaad of tbm. Soiioimitnt anrmiuaki •• in 
Moonblp aad aauiuUT, Iba ataoat oua wu obaamd id indiaalt br hracbau 
IIm miiafai aad arta woidi lotRvalauit hr Iht tacoad Author. 



fuT^Se^K 



6 MESSRS. BUTTBRWORTH^ FLEET STREET. 

Stephbm's Commemtaribs — Opinioniofthe prttf— coDtinned. 

JFVvM tke Ltgal Oiserver. 

" We welcome a new and third edition of Mr. Seneant Stephen*! Comnen- 
taries on the Laws of England, founded on the text of Blackstone. In this edi- 
tion the learned Author has been ably assisted by his Son. Mr. James Stephen. 
They have, with neat diligence and accuracy, digested the chief alterations in 
the law since the last edition of the work— a task of |nreat difficulty, requirinv 
no ordinary knowledge of the law as it was and as it is, with an extraordinary 
power of condensing and arranginjf the chauxes which have been effected in 
nearly all departments of our jadicial system from year to year. The ardnoos 
task of this new edition has been ably performed. We know not auiy work which, 
taken as a whole, can be compared with the Commentaries as the first intro- 
duction to the Study of the Laws of England, whether for the use of the lawyer, 
the legislator, or the private gentleman." 

From th* Jtutiet of tki Peae*. 

** To speak in terms of approbation of a work on which the fiat of poblic 
opinion has so unmistakeably set its stamp would be altogether an act of supere- 
r igation. Every one knows that the last fi ur or five years have been a stirring 
time in the way of legal reform. He will, therefore, be quite prepared to learn 
that the present edition of the New Commentaries bears the mark of alteration, • 
either in text or note, in almost every chapter throughout the work, if not in 
every page. We honestly and hesrtily auvise him to turn to the work itself, 
and ne will find that it not only contains the latest information upon almost 
every subject he may require to be informed upon, but that as in former edi- 
tions, so in this, whatever is handled is treated in that perspicuous and scientific 
maimer which has hitherto contributed to extend the repatation of the Mew 
Commentaries." 

From ih€ Imw MagmMint. 

** We have long regarded this as the most valuable law book extant. We 
make no exception. We believe, moreover, the labour saved to the Student by 
this work to b-. invaluable. Nor are we sure that any amount of labour coold 
give him the same comprehensive insight to the science he is about to enter 
anon. It is the grammar of the law. It is sheer nonsense to talk of the worth 
of Blackstone nowadays. We undertake to say that the Student who should 
read him now would have to unread half the work contains, and add as much 
more to his information when he had exhausted all that Blackstone knew. This 
results not merely from the changes which have since taken place, but from the 
diffuse and often verbose style in which Blackstone wrote his very faulty work, 
which it has been the fashion of a comparatively illiterate age to laud and extol. 
We venture to suggest to Serjeant Stephen to discard Blackstone altogether, 
and to re-write the passages he has modestly but injudiciously interpolated in 
his own infinitely superior composition. We may here allude to the ^reat care 
taken by Mr. James Stephen, to whom much credit is due for the intelligent 
zeal and diligence he has evinced in preparing this edition of Stephen's Com- 
mentaries for the press." 



Questions on Stephen^ s New Commentaries. 

QUESTIONS for LAW STUDENTS on the Third 
Edition of Mr. SERJEANT STEPHEN'S NEW COM- 
MENTARIES on the LAWS of ENGLAND. By James 
Stephen, of the Middle Temple, Barrister at Law, and Pro- 
fessor of English Law, &c., at King's College, London. 8vo. 
10s. 6(/. cloth. 



LAW WORKS PUBLISHED BY 



Crabb's Conveyancing. — Fourth Edition, by 
Christie. 

A COMPLETE SERIES of PRECEDENTS in 
CONVEYANCING, with Common and Commercial Forms, 
in Alphabetical Order, adapted to the present State of the Law 
and Practice of Conveyancing, with Prefaces, Observations and 
Notes on the several Deeds. By George Crabb, Esq., Bar- 
rister at Law. The Fourth Edition. By J. T. Christie, 
Esq., of the Middle Temple, Barrister at Law. Just published, 
2 vols, royal 8vo. 2/. 2<. cloth. 

From the Ltm Magatine. 

** The original work needi no commendation, it is a standard book of the 
highest reputation and of indispensable utility. In this new edition Mr. Christie 
has endeavoured to curtail the work as much as possible without diminishing 
materially the number of Precedents, and has altered those which are retained 
that they may be similar to the forms of drafts now in use. He has revised the 
Prefaces to the different Precedents according to the various changes made in 
the law. He has retained the alphabetical arrangement, and has not diminished 
the variety of subjects on which the Precedents are given. All this must 
largely enhance the value of the work not merely to Conveyancers but to all 
practical men. The new forms are drawn with admirable precisioD, and reflect 
great credit on Mr. Christie, who is entitled to the thanks of the profession for 
a really vaiuable addition to our working libraries." 

Erom tht Legal Oisener, 

** Mr. Christie has not only ably revised this Fourth Edition of the late Mr. 
Crabb's work, bat very materially iaiproved it by amending, and in many in* 
stances curtailing, the length o\ the original precedents, and adapting them to 
the established forms of the jpreseat day. The introductory statements of the 
law relating to each class ofdrafts are concise and highly useftil, particularly 
to the articled clerk and young solicitor, who it is obvious shonld strive to unite 
an accurate knowledge of the principles of law applicable to the Various kinds 
of legal instruments with the practical forms by which the intentions of the 
parties are to be carried into effect, and by^ which means he will soon become 
master of his profession. The Editor has with great care in the Prefaces to each 
class of Deeds, and the notes thereon, noticed the various alterations in the law 
which have taken place since the former edition of the woric." 

From BelTt Messenger, 

** Crabb's Conveyancing is so well and favourably known to all conveyancers, 
as well as those persons generally connected with (he transfer of proper^r, that 
a new edition would have perhaps attracted less attention, were it not that the 
present is edited by so excellent a conveyancer as Mr. Christie. The circum- 
stance of his editing the work stamps it at once with the profession as the best 
groundwork existing. The arrangement, the forms, selection of precedents, and 
general treatment of the subject were so well given in Mr. Crabb's original 
woik, that an editor could mould them to the form and spirit of the present day. 
retaining all the valuable portions, and rendering them applicable to practical 
purposes, a^ altered by the statutes passed since Mr. Crabb wrote, we must 
award our warmest praise to Mr. Christie for producing a work so much re- 

Jiuirad by the profession, and which he has ^iven in so perfect a form, that no 
awyer will feel his library to be complete without it." 



8 LAW WORKS PUBLISHED BY 

WarreiCs Law and Practice of Election 
Committees. 

A MANUAL of the LAW and PRACTICE of 
ELECTION COMMITTEES, being the concluding portion 
of a " Manual of Parliamentaty Election Law" By Samuel 
Warren, D.C.L., one of Her Majesty's Counsel, and Recorder 
of Hull. Royal 12mo. 15s. cloth. 

*' A Treatise which appean to exhaust the snbjeett fot we can discover no 
point on Election Petition Law which has not been touched npon."— Lmv TVmm. 

"The present volume bears internal evidence of the master hand by which 
•lone so important a subiect ought to be touched. The arrangement is simole 
but logical : the authorities are carefully collected and stated ; the style is 
clear and Drecise, jet rendered agreeable by a freshness and originality which 
often rival those of the historian and the philosopher."— AfffnuKf HermU, 

"As long as the law shall remain as it is, this very elaborate and able exposi- 
tion of it, clearly arranged, and excellently illustrated by the best authoritieSt 
will remain the leading book upon the subject."— UramiNtfr. 



Warren's Manual of Parliamentary Elec- 
tion Law. 

A MANUAL of the PARLIAMENTARY ELEC- 
TION LAW of the UNITED KINGDOM, with reference 
to the Conduct of Elections, and the Registration Court; with 
a copious Index. By Samuel Warren, D.C.L., one of Her 
Majesty's Counsel, and Recorder of HulL One thick volume, 
royal 12ino. 25«. cloth. 




possiDiv De contested, ana wno are engaged in tne managem 
avail themselves of this iovaluable volume."— £«fc/ Otterver. 

" A work which appears to have been executed with great care."— JWrtif. 

** Mr. Warren's work has the great advantage of bringing down the cases to 
the present period, and of givug succinctly and clearly the law as it now 
stands."— X«v Magasint, 



Quain and Holroyd^s Common Law. 

The NEW SYSTEM of COMMON LAW PRO- 
CEDURE according to the COMMON LAW PROCEDURE 
ACT, 1 852. By J. R. Quain, of the Middle Temple, Barrister 
at Law, and H. Holroyd, of the Middle Temple, Special Pleader. 
12mo. 7«. 6</. cloth. 

" Bfr. Quain and Mr. Holroyd have rendered good service to the PractitioiMn 
in their Commentaries on the various sections of the act."— Xtff «/ Oistrv«r. 



MESSRS. BUTTERWORTH9 FLEET STREET. 



9 



O'Dowd's New Chancery Practice. — Second 
Edition. 

{Dedicated^ by permission, to the Right Son. the Master of the Molls.) 

THE NEW PRACTICE of THE COURT of 
QHANC£RY, as regulated by the AcU and Orders for the 
Improvement of the Jurisdiction of Equity, 15 & 16 Viot. c. 86; 
for Abolishing tlie Office of Master, 15 & 16 Vict, c. 80; and 
for Relief of the Suitors, 15 & 16 Vict. c. 87; with Introduction, 
Notes, the Acts, the Orders, and a copious Index. By James 
O'Dowo, Esq., Barrister at Law. Second Edition, corrected, 
greatly improved, and with the decisions. 12mo. 7<. 6d, 
boards. 

** A nicely imnffed little book which will not fail to be of service to the 
Practioner in the Court of Chancery." — Law Magazine, ' 

" The work recommends itself by clearness, method, and comprehensiveness, - 
and is not merely a reprint of the acts, with a few meagre notes, bat a well di- 
gested, comprehensive, and lumiuous treatise on these important statutes."— £«» 

" A comprehensive, compact, and well written treatise on the New Chancery 
Statutes."— Esmmitur, 

JRome's Copyhold Enfranchisement Manual, 
1853. 

ROUSE'S COPYHOLD ENFRANCHISEMENT 

MANUAL, containing the Provisions of the Copyhold Act of 
1853, with the Act of 1852, for Compulsory Enfranchisement 
and full instructions as to the Practice under the Act, with co- 
pious Notes, upwards of Fifty Forms, Suggestions to Lords, 
Stewards, and Copyholders, protective of their several interests, 
and to Valuers in the performance of theic duties ; Rules (twenty 
in number) for valuing the Lord's various rights, with Examples 
and Tables applicable to the Rules, and a Statement of the Law 
under the previous Acts. By Rolla Rouse, Esq., Barrister 
at Law, Author of *' The Practical Man," &c. &c. 12mo. 5«. 
doth. 

" The object of this very nsefal little book is to give all the practical rolea 
which can be anywise useftu for effecting the commutations, and to enable every 
one, whether professional or not, to protect his interest in the re9aisite negocia- 
tions and arrangements, whether for Commntation or Enfranchisement.*'— Xa» 
Magazine, 



10 



LAW WORKS PUBLISHED BT 



Normans Manual of the New Patent Law. 

A TREATISE on the LAW and PRACTICE 
rclathig to LETTERS-PATENT for INVENTIONS, as 
altered and amended by Statutes 15 & 16 Vict c. 83, and 12 
& 13 Vict. c. 109, with the New Rules of Practice in the 
Offices of Commisnonen of Patents, and in the Petty Bag 
Office in Chancery, and all the Cases down to the time of pub- 
lication. By John Paxtom Norman, M. A., of the Inner 
Temple, Barrister at Law. Post 8vo. 7s. 6<2. doth. 

'* This is s Tery compact and nsefol Manual/*— Jamf. 

** Th« obgect of this Treatise is to famish a complete riew of die Lew of 
Patents ; and the author . keepiog this object before him, has studied coodensa- 
tioo and brevity. Altogether this is a very nsefhl book, and well ffot up. The 



principles are enunciated with perspicuity, without prolixity ;_thc decisions and 

iW; and the wh'>le Law ox 
into a small vblame without coufusion."— Xov Timu. 



statutes incorporaud very tencW; and the wh'>le Law ox Patents condensed 



HameVa Laws of the Customs. 

The LAWS of the CUSTOMS, consolidated by 
direction of the Lords Commissioners of her Majesty's Trea- 
sury (16 & 17 Vict. caps. 106 & 107); with a Commentary 
containing Practical Forms, Notes of Decisions in Leading 
Customs Cases, Appendix of Acts ; also a Supplement for 1854, 
containing a Commentary on the three Acts (17 & 18 Vict 
caps. 28, 29 and 122), and a Summary of the existing Duties, 
and a copious Index. By Felix John Hauel, Esq., Solicitor 
for her Majesty's Customs. 1 vol. royal 8vo. 16s. cloth. 

*' An elaborate commentary on the Laws of the Customs."— 7I(« Tim§$, 

" To the Merchant it will be found an invaluable Guide ; to the Customs 
Officer a most instructive companion ; and to the Lawyer the only treatise de> 
serviiiK the name ever given to the profession on the important branch of Com- 
mercial Law which it professes to illustrate."— Xav Magmnnt* 

** Mr. Hamel's will be foaod a superior work, clear in exposition, enlarged in 
▼lew, and yet of so practical a character, as to furnish a safe guide to the mer- 
chant or professional man."— <S^«c/«/0r. 

*' Justices of tbe Peace and the legal profession generally will find it of the 
greatest use, in placing before them with extreme care and perspicnity all those 
provisions of the Customs Laws which now regulate their proceedings."— 
Justiet of th« Peact. 



MESSRS. BUTTBRWORTHy FLEET STREET. 



11 



Oh£s Magisterial Synopsis. — Fourth Edit. 

(Dedieatedf by permiuion^ to the Lord Chief Justice of England.) 

THE MAGISTERIAL SYNOPSIS : comprising 

Summary Convictions and Indictable Offences, witn their 

Penalties, Punishment, &c., and the Stages of Procedure, 

tubularly arranged i together with all other Proceedings before 

Justices out of Quarter Sessions : adapted practically throughout 

to the Provisions of Sir John Jervis's Acts, with Forms, Cases, 

Copious Notes and Observations, &c. Fourth Edition, enlarged 

and improved. By George C. Oke, Assistant Clerk to the 

Newmarket Bench of Justices, Author of " The MagUterial 

Formulist" 8vo. 2ls, cloth. 

%* In this improyed Edition the important Statutes and Decisions of the last 
two years relating to Magisterial Practice, are now incorporated. 



Oke^s Magisterial Formulist. 

The MAGISTERIAL FORMULIST, being 
a Complete Collection of Forms and Precedents for practical 
use in all Matters out of Quarter Sessions, adapted to the Out- 
lines of Forms in Jervis's Acts, 11 & 12 Vict. cc. 42, 43, with 
an Introduction, Explanatory Directions, Variations and Notes 
brought down to 12 & 13 Vict. By George C. Oke, Author 
of The^^ MagUterial Synopsis" 8vo. 21s. cloth. 

nopds," and 



♦_« 



The above Work is intended a* a Companion to ** Oke's Mafflatertal Syi 
may be used with that or other Boohs of Magisterial Praetiee, 

*' The same care pervades the present elaborate work as characterised the 
Aathor'> earlier labours, and the utter uselessness of old forms since the passing 
of Jervis's Acts* render it of paraoiount utility."— £riVa»iiia. 



I 



Oke's Solicitors' Book- Keeping. 

AN IMPROVED SYSTEM of SOLICITORS' 
BOOK-KEEPING, practically exemplified by a Year's sup- 
posed Business, with Directions for Posting, Balancing, Check- 
ing, &c. Adapted to small, moderate and large Offices; to 
Partnership and Sole Concerns. By George C. Oke, Author 
of *^ The Magisterial Synopsis," and " The Magisterial Formu- 
list," 8vo. 5<. cloth. 



"Mr. Oke 
admirably 
Solicitors is 




the above 
as this to 



12 



LAW WORKS PUBLISHED BT 



Manuals for Country Attorneys^ Sfc. 

ffint^xf^a doltcttor'ii B006 of J^ractual jTonniEf, con- 
taining an Abridgment of the Stamp Acts, and a variety of 
usefhl Forms and InstructionB not to be found- in the Text 
Books, but constantly required in Solicitors' Offices, especially 
with reference to Common Apprenticeships — Conditions of 
Sale — Contracts — Statutory Declarations — Powers of Attorney 
— ^and Wills, — and to the preparation of Annuity, Legacy, and 
Residuary Accounts, — and Applications for increase and return 
of Duties on Probates and Letters of Administration, — with nu- 
merous Variations, Schedules, and Tables showing the different 
Rates of Duty and the Amount from One Fenny to £100. 
By Henry Moore, Esq. 12mo. 7s. 6<j. cloth. 

*' A Qsefal collection of Forms commonly required in the office of a Solicitor. 
From the account of its contents it will be seen that it offers a great deal of 
really useful information in a small space."— TA« Laa Times. 

*' The Forms selected are not only serviceable and carefully drawn, but many 
of them are such as can rarely be met with in the ordinary way ; they will un- 
doubtedly be of considerable utility to the general practitioner."— 2m Jnstict 
€f tke Peaet. 

** We can confidently recommend the volume as a most useful contribution 
to the Solicitor's working library."— 7%« Ghi*. 

" These Practical Formtt as far as we have examined them, are carefully 
drawn."— Xav Magann*. 



i&ntixei Country attome^^i^ 9o(&et 3Clnnnnbrancir» 

containing a Collection of useful Forms required by Country 
Attorneys, Land Agents, Surveyors, &c. upon a variety of 
occasions, when from home; with Practical Instructions for 
Deeds, Wills, &c. &c., and Variations adapting the Forms to 
almost every variety of circumstances ; to which is added, a 
Collection of novel and useful Interest, Regal, and other 
Tables, designed by the Author exclusively for this and his 
other Works. Second Edition. By HEfNRY Moore, Esq. 12mo. 
7«. cloth ; or bound as a pocket book, 8<. 



ifSloori'ii ifniEJttucttoni^ for preparing 9bi^tracts( of 

TITLES, after the most improved System of eminent Convey- 
ancers ; to which is added, a Collection of Precedents, showing 
the method — not only of abstracting every species of Deeds, but 
also of so connecting them together, by collateral Documents, 
as to form a complete Title. Second Edition, with considerable 
Additions. By Henrt Moore, Esq. 12mo. 6s. cloth. 



MESSRS. BUTTERWOATH, FLEET STREET. 



13 



Ghreming's Forms of Pleadings and Pro- 
ceedings in Common Law. 

FORMS of DECLARATIONS, PLEADINGS 
and other PROCEEDINGS in the Superior Courts of Common 
Law, with the Common Law Procedure Act, and other Sta- 
tutes ; Tahle of Officers Fees ; and the New Rules of Practice 
and Pleading, with Notes. By Henrt Greening, Esq.j Special 
Pleader. Second Edition. 12mo. 10s. 6d, boards. 

*' This work comprisiog as it does almost all the common Forms of Pleadings, 
is calculated to be of considerable utility to the Practitioner. The book is quite 
worthy of the learned Author's reputation as a Pleader, and we can with plea* 
sure recommend it to such of our readers as are engaged in the preparation of 
everyday pleadings in ordinary actions."— Xi«» Timui, 



Pulling' s Mercantile and Joint Stock Ac- 
counts. 

A PRACTICAL COMPENDIUM of the LAW 
and USAGE of MERCANTILE ACCOUNTS; describing 
the various Rules of Law affecting them, the ordinary Mode in 
which they are entered in Account Books, and the various 
Forms of Proceeding, and Rules of Pleading, and Evidence for 
their Investigation, at Common Law, in Equity, Bankruptcy 
and Insolvency, or by Arbitration. With a SUPPLEMENT, 
containing the Law of Joint Stock Companies' Accounts, under 
the Winding-up Acts of 1848 and 1849. By Alexander 
Pulling, Esq. of the Inner Temple, Barrister at Law. 12mo. 
9$, boards. 

" Within a very small compass It combines all tlie rules of law regarding 
accotuts, with the practice of merchants as to the mode of entering them in 
their books.**— Xi«» Maga%m$, 

** Mr. Falling's volume recommends itself to the profession by the excellence 
of the arrangement, the diligence with which the law has been collected from 
so many scattered soarces, and the perspicooQs manntr in which the author 
expresses himself."— X<«w Timui, 



14 



LAW WORKS PUBLISHED BT 



Municipal Corporations, 
Railway, Banking, Canal and 

other Joint-Stock and Trading 

Bodies, 
Dean and Chapters, 
Universities, 
CoUeges, 
Schools, 
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INCLUDING 

with 
Quasi Corporations aggr^fate, as 
Guardians of the Poor, Church- 
wardens, Churchwardens and 
Overseers, etc., 
^and also 
Corporations sole, as Bishopa, 
Deans, Canons, Archdeacons, 
Parsons, etc. 



By James Grant, Esq., of the Middle Temple, Barrister at Law. 
Royal 8vo. 26«. boards. 

*' We think the arrangement happy. Another feature in Mr. Grant*s book is 
the honesty with which it has been compiled." — Laa MagaMine. 

"The object has evidently been to render the work practically nsefnl to per- 
sons in any way, as Officers or Members, connected \rith any Coiporatioo; 
and we think that object is eminently answered. Vast research and diligence 
are displayed in the execution."— UX« Titius, 

Cooper's Chancery Acts and Orders^ 1852 — 
Second Edition. 

The NEW CHANCERY ACTS and the 
GENERAL ORDERS of 1852, complete, with oopions 
Indexes. Edited by Charles Purton Cooper, Esq., one of 
Her Majesty's Counsel. 12mo. 4f. sewed. 

also, 

Mr. CHARLES PURTON COOPER'S MANUAL of 
CHANCERY CHAMBER PRACTICE, uniform with the 
Second Edition of his " Ntw Chancery Acts and Orders" 12mo. 
Is. 6^. sewed. 



1 



Bainbridge on Mines and Minerals. 

A PRACTICAL TREATISE on the LAW of 
MINES and MINERALS ; comprising a detailed account 
of the respective Rights, Interests, Duties, Liabilities and Re- 
medies of Landowners, Adventurers, Agents and Workmen ; 
and of the Local Customs of Derbyshire, Cornwall and Devon. 
With an Appendix of Legal Forms, relating to Grants, Leases, 
Transfers, Partnerships and Criminal Proceedings. By Wil- 
liam Bainbridge, Esq., Barrister at Law. 8vo. 16s. boards. 

Grant's JLaw of Corporations in General. 

A PRACTICAL TREATISE on THE LAW of 
CORPORATIONS in GENERAL, as well Aggregate as Sole. 



MESSRS. BUTTERWORTH, FLEET STREET. 



15 



Coote's Ecclesiastical Practice. 

The PRACTICE of the ECCLESIASTICAL 
COURTS, with Forma and Tables of Costa. By Henry 
Charles Coote, Proctor in Doctors' Commons, &c. One 
thick Vol. 8vo. 28<. boards. 

" This is a well timed and well executed publication. A more acceptable 
compilation, to country solicitors especially, it is difficult to conceive."— Jlom- 
iMf CkronieU, 

Ecclesiastical Practice is now for the first time made the subject of a formal 
and elaborate treatise. The principles reviewed have been before illustrated by 
Gierke. Conset and Oughton. and the latter introduced some Precedents ; but 
these have become wholly obsolete and useless, and it has remained for Mr. 
Coote, by a combination of industnr and experieace, to give to the Profession a 
work which has been long wanted. But which so few are competent to supply.*'— 
Law Tipte*, 



Pothier on Partnership^ by Tudor. 

A TREATISE on the CONTRACT of PART- 
NERSHIP, by POTHIER; with the Civil Code and Code of 
Commerce relating to that subject in the same order, translated 
from the French ; with Notes referring to the Decisions of the 
English Courts. By Owen Davies Tudor, Esq., of the Middle 
Temple, Barrister at Law. 8vo. 55. cloth. 

** English lawyers would very generally be glad to make a more intimate ac- 

8uaintance with Pothier, if they could da so without the trouble of translating 
im for themselves ; And they will therefore thank Mr. Tudor for having per- 
formed that labour for them, and enabled them to master the treatise of the 
great French jarist."—Xa» limes. 



Browne on Actions at Law. 

A PRACTICAL TREATISE on ACTIONS at 
LAW, embracing the subjects of Notice of Action ; Limitation 
of Actions ; necessary Parties to and proper Forms of Actions, 
the Consequence of Mistake therein ; and the Law of Costs 
with reference to Damages. By Rowland Jay Browne, Esq., 
of Lincoln's Inn, Special Pleader. 8vo. 1 6$. boards. 

** The most copious and most recent information is famished upon evexy sub- 
ject of which he proposes to treat, and the Work, which is eminently useful to 
Common Law pracutioners in all situations, is indispensable at Misi Pxios."— 
'lUmts. 



16 LAW WORKS PUBLISHED B7 



Archer*s Index to Unrepealed Statutes. 

An INDEX to the UNREPEALED STATUTES 
connected with the Admuiistration of the Law in England and 
Wales, commencing with the Reign of William the Fourth and 
continued up to the dose of the Session 1850. By Thomas G. 
Archer, Solicitor. 8vo. 5s. hoards. 

** A great deaidentum to all those whose professional avocations or judicial 
functions imuose on them the necessity of a frequent reference to the Statute 
Book. We nave tested the worlt, and find it perfectly accurate."— LegMl 
Oi$$rvtr, 



Chinning on Tolls. 

A PRACTICAL TREATISE on the LAW of 
TOLLS; and therein of Tolls Thorough and Traverse; Fair 
and Market Tolls; Canal, Ferry, Port and Harbour Tolls; 
Turnpike Tolls; Rateability of Tolls; Exemption from Tolls; 
Remedies and Evidence in Actions for Tolls. By Frederick 
Gunning, Esq., of Lincoln's Inn, Barrister at Law. 8vo. 9s. 
boards. 



Davis^s County Courts Evidence. 

A MANUAL of the LAW of EVIDENCE on 

the Trial of Actions and other Proceedings in the New County 
Courts. By James Edward Davis, Esq., of the Middle Temple, 
Barrister at Law. 12mo. Ss. boards. 

*' A useful and well-arranged manual.'*— £«v Magmnnt, 



James on Land and Building Societies. 

The RIGHT and COST of REDEEMING PRO- 
PERTY mortgaged to BENEFIT-BUILDING SOCIETIES, 
and FREEHOLD LAND SOCIETIES. By J. H. James, 
of the Middle Temple, Esq., Barrister at Law. 12mo. 55. 
boards. 






MESSRS. BUTTERWORTH, FLEET STREET. 17 

Scriven on Copyholds. — Fourth Edition. — 
By Stalman. 

A TREATISE on COPYHOLD, CUSTOMARY 
FREEHOLD, and ANCIENT DEMESNE TENURE; 
with the Jurisdiction of Courts Baron and Courts Leet. Also 
an Appendix containing Rules for holding Customary Courts, 
Courts Baron, and Courts Leet ; Forms of Court Rolls, Depu- 
tations, and Copyhold Assurances, and Extracts from the 
relative Acts of Parliament By John Scriven, Seijeant at 
Law. The Fourth Edition, embracing all the authorities to 
the present period, by Henrt Stalman, Esq. of the Inner 
Temple, Barrister at Law. Two Vols, royal 8vo. 21, 10s. 
boards. 

Keyser on the Law of the Stock Exchange. 

THE LAW relating to TRANSACTIONS on the 
STOCK EXCHANGE. By Henry Keyser, Esq., of the 
Middle Temple^ Barrister at Law. 12mo. 8s. cloth. 

" A compact exposUioo of the Law relating to the Foods aod to the Stock 
Exchaoge, usefol alike to the public aod to the practitioner."— <S!)>«c/afor. 

" This work has been performed io a clear and distinct manner, no work of a 
similar kind is in existence."— B«//'/ Meuenger. 

** Of Mr. Keyser's book, as a work of reference, we are enabled to speak in 
onqaaiified terms."— JBriVunnia. 

Wills on Circumstantial Evidence. — Thir,d 
Edition. 

An ESSAY on the PRINCIPLES of CIRCUM- 
STANTIAL EVIDENCE, illustrated by Numerous Cases. 
Third Edition. By William -Wills, Esq. 8vo. 9*. boards. ^ 

" I have read this Essay thoronghly, and with great satisfaction, it is written 
strongly and elegantly, with conclusive evidence of much research and pro- 
found reflection.^- TA«/a^« ChanetUor Kent, 

Law Students Guide. 

THE LAW STUDENTS GUIDE; containing 
an Historical Treatise on each of the Inns of Court, with 
their Rules and Customs respecting Admission, Keeping 
Terms, Call to the Bar, Chambers, &c., Remarks on the 
Jurisdiction of the Benchers, Observations on the Study of 
the Law, and other useful Information. By P. B. Leigh, 
Esq., of Gray's Inn, Barrister at Law. l2mo. ^t, boards. 



18 LAW WORKS PUBLISHED BY 



Hertslefs Commercial Treaties. 

A Complete Collection of the TREATIES and 
CONVENTIONS, and RECIPROCAL REGULATIONS, 
at present subsisting between GREAT BRITAIN and FO- 
REIGN POWERS, and of the Laws, Decrees, and Orders in 
Council concerning the same, so far as they relate to Commerce 
and Navigation, Slave Trade, Post Office Communications, 
Copyright, &c., and to the Privileges and Interests of the Sub- 
jects of the High Contracting Parties; compiled from Authentic 
Documents. By Lewis H ertslet, Esq., Librarian and Keeper 
of the Papers, Foreign Office. Vols. 1 to 8, 8vo. 8/. 5s. boards. 



Burchell and Kennedy's Joint Stock Com- 
panics Registration Act. 

An ACT (7 & 8 Vict. c. 110,) for the Registration, 
Incorporation and Regulation of JOINT STOCK COM- 
PANIES; with Preface and Index by James Burchell, Esq., 
and an Analysis by Charles Rann Kennedy, Esq., Barrister 
at Law« 18mo. 3<. 60^. boards. 



Gael on Drawing Legal Instruments. 

A PRACTICAL TREATISE on the ANALOGY 

betweenLEGALand GENERAL COMPOSITION, intended 
as an Introduction to the drawing of Legal Instruments, Public 
and Private. By S. H. Gael, Esq. Barrister at Law. 8vo. 
10«. cloth. 



Farren^s Fonns of Original Bill. 

The COMMON FORMS and RULES for Drawing 
an ORIGINAL BILL in CHANCERY, as directed by the 
New Orders of Court, and Reported Cases. Carefully collected 
by G. Farren, jun., Esq., Chancery Barrister. 2s. 6d, cloth. 

** The Worlc has been very carefally compiled, and displays the indostry, re- 
searchi and skill ia arrangement, fur which Mr. Farren is aistinguished."--X4ri^«/ 
Ois«rvtr. 



..•1 



MESSRS. BUTTERWOKTH, FLEET STREET. IV 

Shelf ord on the Law of Railways. — Third 
Edition. 
THE LAW of RAILWAYS, including the Three 

General ConsolidatioQ Acts, 1845, BUd the other General Acts 
for regulating Rsilwaye in England and Ireland, viitb copious 
Notes of Decided Cases on their Conalruction, including the 
Rights and Liabilities of Shareholders, Allottees of Shares, and 
Provisional Committee-men, with Forms, &c. hy Leonard 
Sbelford, Esq., of the Middle Temple, Barrister at Law. 
Tbird Edition. Just published, ro;al 12nio. 30s. cloth. 



Baker's Law of Coroner. 

A PRACTICAL COMPENDIUM ofthe RECENT 
STATUTES, CASES,and DECISIONS affretirg the OFFICE 
of CORONER, with Precedents of Inquisitions, and Practical 
Forms. By William Bakes, Eoq., one of the Coroners for 
M'iddleeex. 12mo. 14i. cloth. 



SeweUs Sheriff and Under- Sheriff. 

A TREATISE on the LAW of SHERIFF, with 
Practical Forms and Precedents. By Richard Clarke 
Sewbll, Esq., D.C.L., Barrister at Law, Fellow of Mngdaten 
College, Oxford. 8to. 1/. Ii. boards. 



20 LAW REPORTS PUBLISHED BT 

House of Lords Reports. 

REPORTS of CASES decided m the HOUSE of 
LORDS on Appeals and Writs of Error, Claims of Peerage 
and Divorces. By Charles Clark, Esq., of the Middle 
Temple, Barrister at Law. (By appointment of the House of 
Lords,) 

Vols. L and IL, and III. and Vol. IV. Parts I. and XL, containing 
Cases decided from 1847 to 1853. 

{Theu Reports toiU be regularly contitiued.) 



Cooper's Chancery Cases and Dicta, and 
Miscellanies. 

Pubiuhed oceasioneUly, in Numbers, 

CHANCERY CASES and DICTA, and NOTES 
from MSS., Ancient and Modem, with occasional Remarks; 
and Chancery Miscellanies. By Charles Purton Cooper, 
Esq., one of her Majesty's Counsel. 

Cases and Dicta — Nos, I, to VII, are published, price 6d, each, 
se%oed, 

« 

Chancery Miscellanies — Nos. I. to XIV. are published, price 
6d, each, Hived, 



The Common Bench Reports. 

CASES argued and determined in the COURT of 
COMMON PLEAS. Vol. X. Parts IV. & V., and Vol. XL 
(By Manning, Granger and Scott.) 



•I 



• 



MESSRS. BUTTERWORTH^ FLEET STREET. 21 

Dr. RohinsorCs New Admiralty Reports. 

REPORTS of CASES argued and determined in the 
HIGH COURT of ADMIRALTY, commencing with the 
Judgments of the Right Honourable Stephen Lushington, 
D.C.L. By William Robinson, D.C.L. Advocate. 

Vols. I. and II., and Vol. III. Parts I. and II. containing Cases 
decided from Michaelmas Term, 1833, to Trinity Vacation, 1850 . 

4/. 7f . Qd. sewed. 

{These Reports are in immediate continuation of Dr. Haooaro's, 
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Fonhlanque^s Reports in the Commissioners^ 
Courts of Bankruptcy. 

REPORTS of CASES adjudicated in the SEVE- 
RAL COURTS of the COMMISSIONERS in BANK- 
RUPTCY, under the Bankrupt Law Consolidation Act, 1849. 
By J. W. M. Fo^BLANQUE, £sQ., of the Middle Temple^ Bar- 
rister at Law. # 

Vol.1., Parts I. II. and III. coDtaining Cases decided from 1849 
to 1852. 18i. 6d. sewed. 



Notes of Cases in the Ecclesiastical and 
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This Work contains carefully digested Reports of all Cases of 
importance in the Arches Court of Canterbury, the High Court 
of Admiralty, the Prerogative Court of Canterbury, the Court of 
Peculiars of Canterbury, the Consistorial Courts of London and 
other Dioceses, the Court of Surrogrates, the Dean and Chapter 
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the Decisions of the Judicial Committee of the Privy Council on 
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Court of Admiralty. 

Now complete in Seven VolumeB, including all the Cases decided in the 
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Summary Convictions.— paley od summary con- 
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Lnsh*s Practice, by Stephen.— The practice of the 

SUPERIOR COURTS of LAW at WESTMINSTER in Actions and Pro- 
ceedings over which they haye a common Jurisdiction, with an Appendix of 
Forms, ftc. By Robxrt Lvsh, Esq., of Gray's Inn, Barrister at Law. The 
SscoHD Edition. By Jamxs Stxphsk, of the Middle Temple, Barrister at 
Law, and Professor of English Law, &c. at King's College, London. In 8vo. 



Commercial Law.-A compendium of the mercan- 
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Cookers Insolvent Practice. — The Third Edition of a 
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Court and Tables of Costs. By Edwaxd Cooke, Esq., of the Middle 
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Pleading.— MR. Serjeant Stephen's treatise 

on the PRINCIPLES of PLEADING in CIVIL ACTIONS; comprising a 
Summary View of the whole proceedings in a Suit at Law. The Sixth 
EoiTiov, remodelled according to the New System of Practice and Pleading. 
In 8yo. 



Prepabing for Publication — continued. 

"Commercial Treaties.— hertslet'S Complete Collec- 
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Real Property.— I'EADING cases on the law relating 
to REAL PROPERTY, CONVEYANCING and the CONSTRUCTION of 
WILLS; with Notes. By Owen Davies Tudor, Esq., of the Middle 
Temple, Barrister ^t Law, Author of "Leading Ceues in Equity" In 1 vol. 
royal 8vo. 

Parliamentary Practice.— The Third Edition of a 

PRACTICAL TREATISE on the LAW, PRIVILEGES, PROCEEDINGS 
and USAGE of PARLIAMENT. By Thomas Erskine May, Esq., of the 
Middle Temple, Barrister at Law, Examiner for Standing Orders to the 
House of Lords, one of the Examiners of Petitions for Private Bills, and 
Taxing Officer of the House of Commons. In 8vo. 

Sea Shore Bights.— The Second Edition of a TREATISE 
on the RIGHTS to the SEA SHORE and to the SOIL and BED of TIDAL 
HARBOURS and NAVIGABLE RIVERS, incorporating, for the first time, 
the celebrated Treatise by Sir Matthew Hale, " De Jure Maris, et Brachi- 
orum ejusdem ; et de Portibus Maris," with Notes, bringing the whole Law 
on the Subject down to the present time. By James Je&wood, Esq., of the 
Middle Temple, Barrister at Law. In 8vo. 

HOUSE OF LORDS REPORTS. Vol. IV. Part III. 

ROBINSON'S NEW ADMIRALTY REPORTS, Vol. III. Part III. 

FONBLANQUE'S NEW REPORTS of CASES adjudicated in the 
Several COURTS of the COMMISSIONERS in BANKRUPTCY, under 
the Bankrupt Law Consolidation Act, 1849, Vol. I. Part IV. 

*•* This Part will contain a Digested Index of all the Cases relating to Bank- 
raptcy decided since the Bankrupt Law Consolidation Act, 1849. 

COOPER'S CHANCERY CASES and DICTA. No. VIII. 

The LAW MAGAZINE, or QUARTERLY REVIEW of 
JURISPRUDENCE, for Notembee (No. 105). 



THE 




OR 



QUAETEBIT EEVIEW OF JTmiSFETISEirCE. 

Commenced In 18A8| 

And regularly published on ihe First of the Months of February ^ May, 
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This weU-established Law Pxeiodical is recommended to the Pro- 
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of eminence. 

2. NoTXS of all LsABiKo Casks, explaining their practical effect. 

S. A QuAKTXRLT Alphabstical Diokst of all Cases in all Superior 
Courts of Law and Equity, ftc. carefully classed and indexed. 

4. Statutxs useftil to the Profession, careAilly abstracted and noted^ 

5. RxYixws, or Shoxt Notks of New Law Books of value, and List or 
ALL New Law Publications. 

6. EvKNTS or THx QuABTKX, Comprising Rules of Court, Calls, Pro- 
motions, Obituary, &c. 

7. Parlxambnta&t Papkrs of value, abstracted. 

*»* The Law Maoazinx thus affords a mass of information essential to 
the Practitioner at a cost of 24s. per annum, which can be obtained 
from no other publication at less than double that price. 



The Number for August {No. 104) contains :— 



I. Lord Brougham and Vaux; his 
Professional and Parliamentary 
Career. 
II. On the Source of the Maritime 
Lien. 

III. The Inns of Court Commission. 

IV. Privileged Communications in 

Equity Suits. 



v. On the Law of Partnership. 
VI. Statute-Law Commission. 
Short Leading Cases. 
New Books. 
Events of the Quarter. 
List of New Publications. 
Digest of Cases. 



London: Published bv Messrs. Buttxkwoxth, 7, Flxxt Staxxt, 
Law Publishera to the Queen's most Excellent Majesty. 

By wAom Subscriber^ Names trill be received, and by all Booksellers* 

*•* A Subscription of 24«., if paid in advance to the Publishers, will ensure 
the delivery of the Law Magazine on the day of publication, postage 
free, in any part of the United Kingdom, for the space of One Tear. 

(Communieatioms for the Editor may be addressed, under cover , to the PmbUshers,) 



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